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Surrogacy: is it legal or illegal in Quebec?

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Family law

In recent months, the notion of surrogacy and its viability has become much more commonplace, due to its exposure via Hollywood stars.
 
However, here in Quebec, our Civil Code specifically invalidates surrogacy contracts. Section 541 of Civil Code of Quebec provides:
 
"Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null."
 
This type of procreation involves a woman, the "surrogate mother," being inseminated with by a man's sperm, and the “surrogate mother” thereafter delivering a child at the end of her pregnancy. 

The phrase "absolutely null" provided by the Civil Code of Quebec means that the surrogacy contract is non-existent in the eyes of the law. Whether the contract is a verbal or written agreement, and even if there has been an exchange of money with the surrogate, it will not be recognized in Quebec courts. Consequently, no legal remedy is possible.
 
This means that the woman who gives birth to the child will be considered, by law, as the child’s mother, even if she has no genetic connection (DNA) with the child, if she has been inseminated with another woman's eggs.
 
Moreover, a parent who has not participated in the conception cannot file for any rights with respect to the child resulting from such an agreement, unless the applicant father is the biological father, under the usual rules of filiation by blood.
 
In addition, it will be impossible for the "surrogate mother" to ask a judge to order payment of the amount agreed between herself and the requesting couple.
 
Consequently, the woman who gives birth will necessarily have a maternal filiation with the child and the paternal filiation will be formed with the father who has donated his sperm.
 
The only way to change this reality would be through legal adoption procedures.

Sonia Rotondo, Attorney-at-Law
Alepin Gauthier Avocats inc.
Surrogacy: is it legal or illegal in Quebec?
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