Wednesday September 07 2022

General publication

Surrogacy : Is It Possible in Quebec?

Quebec society is changing and, to adapt to new realities, a reform of Family Law needed to be considered. On October 21, 2021, Bill 2, entitled "An Act respecting family law reform with regard to filiation and amending the Civil Code in relation to personality rights and civil status" was presented by Mr. Simon Jolin-Barette, the Minister of Justice. The bill finally came into force on June 8, 2022.

Since 2007, 8 other Canadian provinces had already established a legal process for surrogacy. With the entry into force of Bill 2, Quebec becomes the 9th province to allow surrogacy. This modification to the law, which allows and regulates surrogacy, was applauded by several experts and associations because it had become essential that Quebec, and these laws, modernize in order to respect social changes.

In the past, it was not possible in Quebec to legally conclude surrogacy contracts. In fact, article 541 of the Civil Code of Quebec (“Civil Code”), surrogacy contracts are “absolutely null”. Any verbal or written agreement in which a woman agreed to become pregnant and carry a child for another individual or couple ran counter to public order and could not be enforced. 

With the changes to the Civil Code that came into effect on June 8, 2022, it will now be possible to conclude surrogacy contracts in Quebec.  However, they must meet certain requirements to be considered valid. 

The surrogate mother must be aged of 21 years or older. As well, the intended parents must be domiciled in the province of Quebec. Prior to starting the surrogacy process, the surrogate mother and the intended parents must meet separately with a psychologist or a social worker in order to understand the implications of the surrogacy process and obtain a document from the professional stating that they have participated in the meeting. 

The surrogacy contract is then concluded with the intended parents by notarial deed in minutes. Therefore, only a notary in Quebec can prepare this contract. In this contract, although there cannot be remuneration for the surrogate mother, it can include an amount of money that is agreed upon between the two parties for reimbursement of the expenses such as clothing and medical expenses and also reimbursement of lost wages. 

Once the baby is born, the surrogate mother will have to sign another document within 30 days of the birth to confirm that she is abandoning her rights and then the filiation will be established only with the intended parents. It is important to understand that the surrogate mother can change her mind with regard to her filiation to the baby up to 30 days after the birth.  

As the changes to the law are recent, it is important to consult with a lawyer or a notary prior to starting a surrogacy process to understand all the legal implications and requirements of the process. 

Me Gianina Fuschini

Alepin Gauthier Avocats Inc.

This text contains legal information of a general nature and should not replace legal advice with a lawyer or notary who will take into account the particularities of your situation.

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