The legal framework for surrogacy in Quebec may soon change considerably.
In Canada, surrogacy is allowed as long as the surrogate mother is not paid for this service.[1] However, any surrogacy contract is currently not legally binding under Quebec’s civil code.[2] This has caused issues around parentage, adoption, and legal protection of the surrogate and child.
On October 21, 2021, Quebec’s Justice Minister Simon Jolin-Barrette introduced Bill 2 to the National Assembly of Quebec for their consideration. If passed into law, Bill 2 would create a new legal framework for surrogates.
The Bill would require a notarized surrogacy agreement to be in place between the intended parents and the surrogate before the pregnancy ever begins. However, before the surrogacy agreement is signed, a qualified professional must attest that both the surrogate and the intended parents met with that professional to discuss and be informed on “the psychosocial implications of the surrogacy project and … the ethical issues it involves.”[3]
Finally, when the surrogacy contract is signed and notarized, the contract must contain the surrogate’s consent to give up her parentage to the child after the child is born. However, despite this clause, the surrogate will have some increased protection under this proposed legislation. She, and only she, is allowed to change her mind about the pregnancy at any point in the process. This freedom would not be afforded the intended parents. This means a surrogate will be able to terminate the pregnancy or keep the child after it is born without risk of being sued by the other parties involved in the notarized agreement.
The bill is still required to undergo extensive public consultation. However, if Bill 2 passes, it will create significant legal protection for surrogates, and intended parents must be aware of those implications too. As discussed in our recent blog post, a written agreement and independent legal advice is incredibly important for any party seeking a surrogate or acting a surrogate.
Lawyers at BOYNECLARKE LLP can help you navigate the legal issues surrounding surrogacy and family law. If you are seeking legal advice, please call (902) 469-9500 to schedule your consultation with a member of our Family Law team.
[1] Assisted Human Reproduction Act, SC 2004, c 2, s 6(1).
[2] Art 541 CCQ.
[3] Bill 2, An Act respecting family law reform with regard to filiation and amending the Civil Code in relation to personality rights and civil status, 2nd Sess, 42nd Leg, Quebec, 2021, cl 541.10.