The Quebec Family Law Reform introduced by Bill 2 was officially passed on June 7th, 2022, at the National Assembly of Quebec. The bill’s goal, when it was first tabled in October 2021, was to carry out an in-depth reform of family law, which hadn’t been updated in about 40 years despite the social mores having evolved tremendously.
The Bill was led by the Minister of Justice and French Language, Simon Jolin-Barrette. To conform to a Superior Court judgment by the Honourable Gregory Moore, who had declared null on certain articles of the Civil Code with respect to family law due to their discriminatory nature. This forced Jolin-Barrette to legislate. He originally had until the end of the 2021 calendar year to adopt the appropriate legislation, but his request of extension until June 17th, 2022 was granted.
Under the fear of failing to respect the postponed deadline, Jolin-Barrette set aside two main aspects of the Bill, namely the rules surrounding filiation and the supervision of surrogacy, including contracts between prospective parents and surrogate mothers.
Consequently, the rules with respect to surrogacy remained unchanged to the great dismay of the public and consisted of vocal opposition from members of the National Assembly. The adopted reform consisted of 360 articles, so a new reform on surrogacy most probably will not be tabled in the National Assembly for quite some time.
Since the rules with respect to surrogacy remain unchanged, let us review them.
Under the Assisted Human Reproduction Act (AHR Act) adopted in 2004, “surrogate mother” refers to a woman who, with the intention of surrendering the child at birth to a donor or another person, carries an embryo or a fetus, conceived through an assisted reproduction procedure, and derived from the genes of a donor or donors.
Surrogacy agreements currently have no legal value in Quebec, unlike in other provinces. This means that the person who gives birth to the child is the legal mother whether an agreement was signed in advance or not. Only adoption of the child could alter this. As heartbreaking as it may be, a surrogate mother could technically decide to keep the child at the end of the pregnancy if she wanted to. The surrogate mother could also elect to have an abortion during her pregnancy. Inversely, the prospective parents who sought the surrogate mother can abandon her without any prior notice of wanting to end the parental project.
Furthermore, under the AHR Act, the following activities relating to surrogacy are illegal in Canada:
Paying a surrogate mother for her services;
Paying or offering to pay another person, or placing an advertisement to arrange the services of a surrogate mother;
Advising or doing any medical procedures to help a woman become a surrogate mother when the person knows or should know that the woman is under 21 years of age.
Although paying a surrogate mother is criminalized, a surrogate mother may only be repaid for out-of-pocket costs directly related to her pregnancy.
The AHR Act does not prohibit surrogacy itself, so long as a surrogate mother makes the decision for altruistic reasons and thus without financial or other gain.
In the event of illegal renumeration, the AHR Act also does not criminalize a woman who agrees to be or becomes a surrogate mother. Only the prospective parents who pay the surrogate mother could be charged under the federal statutes.
The charges stemming from payment for the services of a surrogate mother are substantial. The AHR Act provides that if found guilty, the person could be fined up to $500,000 or jailed for up to ten years, or both.
Sources:
https://www.canada.ca/en/health-canada/services/drugs-health-products/biologics-radiopharmaceuticals-genetic-therapies/legislation-guidelines/assisted-human-reproduction/prohibitions-related-surrogacy.html
https://montrealgazette.com/news/local-news/bill-2-quebec-adopts-family-law-reform
