Quebec to regulate surrogate pregnancies as part of major update to family law

MONTREAL -

Quebec is ready to recognize and regulate the use of surrogate pregnancies in a new bill that would come with significant updates to the province's family law.

Justice Minister Simon Jolin-Barrette introduced on Thursday Bill 2 to reform family law to adjust it to new social realities.

Currently, in Quebec, contracts signed between a surrogate mother and the intended parents have no legal value under the Civil Code.

Bill 2 would provide a framework for the use of surrogate parents by requiring that a surrogacy agreement be signed by a notary before the pregnancy begins.

The surrogate mother will have to be at least 21 years old, and her contribution will be free of charge, but she could be compensated in case of loss of work income and reimbursed for several expenses.

After the birth of the child, the surrogate mother would have to agree that her parent-child relationship with the child would be deemed never to have existed. The parent-child relationship would be established with respect to the intended parents.

Only the surrogate mother can change her mind and withdraw from the agreement at any time. She could, for example, have an abortion, or decide to keep the child, without the risk of being sued by the intended parents.

However, from the moment they sign the surrogacy agreement, the parents will have responsibilities towards the child and will have to contribute to its subsistence.

"This is really important because currently, there are children who find themselves without legal protection," explained Jolin-Barrette at a news conference Thursday.

He gave the hypothetical of intended parents at odds with the surrogate mother in the eighth month of pregnancy and who then want "nothing more to do with the child."

"The child, at the moment, is not protected. There is no guarantee for him. (...) That is why it is necessary to establish a framework, as we are, very clearly, to protect the child and to protect the surrogate mother."

Quebec family law hasn't been revised since the 1980s. The Legault government intends to introduce a second bill in the coming months, this one on conjugality.

But while he opened many doors on Thursday, the justice minister was quick to close the door on multi-parenting, or when a child has three or four parents.

"For us, it is very clear that the family unit has only two parents," he said. "The literature and studies do not show that it is better for a child to have more than two parents."

PATERNITY, GENDER IDENTITY AND FIRST NAME

Bill 2 also extends the presumption of paternity to common-law partners.

Currently, if a de facto spouse dies during the pregnancy of his or her spouse, he or she can only be recognized as a parent by court order, which is not necessary if the couple is married.

"In 2021, this is not acceptable," said Jolin-Barrette, who said he has heard of several "heartbreaking situations. We will put an end to this injustice, which sometimes harms the child."

Quebec will also add the option of maintaining a relationship with the parent's former spouse. It states that the continued relationship must be in the best interests of the child and involve persons who are significant to the child.

On another note, the government wishes to allow a person, under certain conditions, to change their gender identity on their birth certificate and to change their given names accordingly.

The bill would also allow people whose names were changed at a residential school, and their descendants, to revert to a traditional Indigenous name at no cost.

RIGHT TO KNOW ONE'S ORIGINS

In addition, the legislation enshrines in the Charter of Rights and Freedoms a new right to know one's origins for anyone born of a procreation involving the contribution of a third party.

The purpose is to allow the adopted person or other person to know the name and profile of the third party, as well as the information that would allow him or her to contact the third party, unless the third party has expressed a refusal of contact.

The Bill also gives the adoptee the right to obtain, under certain conditions, a copy of his or her original birth certificate and judgments relating to the adoption.

It gives the adoptee the right to obtain the names of his or her original grandparents and siblings, along with, if they consent, contact information for them.

Upon coming to power in 2018, the Coalition Avenir Québec (CAQ) had promised to undertake an ambitious family law reform.

The previous Couillard government had briefly toyed with the idea of a broad reform, but then abandoned it in the face of the magnitude of the task and the complexity of the issues raised.

'REMARKABLE INITIATIVE'

Just hours after the bill was tabled, the Chambre des notaires du Québec issued a press release hailing the Legault government's "remarkable initiative."

"Today's society is made up of different family models and this bill restores the balance of legal protections for everyone in them. The imposition of a process (...) accompanied by an impartial notary (...) is evidence of the seriousness given (...) to the legal protection of the parties," said the president of the Chamber of Notaries, Hélène Potvin.

- This report by The Canadian Press was first published in French on Oct. 22, 2021.