On March 6, 2024, a major reform of family law came into force in Quebec.
Through this reform, the Quebec legislature legally recognizes the validity of surrogacy agreements (GPA) authorizing prospective parents domiciled in Quebec to use a woman's body to obtain a child.
The particularities of this new regulation were disseminated to the population via advertorials and sponsored content.
To discover
PODCAST - Listen to the club Le Club Le Figaro Idées with Eugénie Bastié
Until now, Quebec was the only Canadian province to have recorded in its Civil Code its refusal to legally recognize these conventions.
These contracts had been recognized as contravening public order by the legislator and considered
“absolutely null”
(article 541 of the Civil Code).
This article was also given as an example of a contract contravening public order, considered illegal without regard to the circumstances and the wishes of the people involved.
It was repealed in June 2023 without justification relating to the non-compliance of these types of contracts with the principle of public order.
Despite this provision of the Quebec Civil Code, the courts had already pronounced a series of judgments recognizing filiations following surrogacy arrangements - local and international since 2014. Faced with a situation of
"fait accompli"
in a request in adoption by the father's spouse, the court found the principles of public order to be irrelevant.
We believe that the court imposed a political choice on society by motivating its decision on the interest of the individual rights of a child
a posteriori
while ignoring the collective interest of children
a priori
as clearly expressed by the legislator in Article 541: a refusal to commodify or objectify the human person.
Also read: Éliette Abécassis: “Surrogacy cannot be “ethical””
The new law puts an end to the Quebec exception by harmonizing with the Canadian law on assisted procreation of 2004 which decriminalized the use of surrogate mothers provided that there is no direct remuneration.
Academics on both sides of the Atlantic, enthusiastic about the theoretical possibility of a so-called
“ethical”
GPA , praised the Quebec approach in the newspaper
Le Monde
last October.
Unfortunately, inaccuracies and erroneous interpretations of Quebec law have been communicated to the French readership.
We would like to correct a few of them.
We would like to reestablish a few facts.
The authors state that:
“The intended parents will not be able to change their mind later and abandon the child
. ”
Quebec law provides that prospective parents be declared parents of the child even if they disappear or are unable to act following the consent of the surrogate mother.
In such a case, the child will be entrusted to the Youth Protection Department, like any child whose parents no longer wish to or can no longer assume their parental responsibilities.
This is also what one of the authors, Geneviève Delaisi de Parseval, recommended in a report for Terra Nova in 2008:
“The fact remains that “forced” filiation is certainly not a solution. desirable for the child
.
What is more, where applicable, the Quebec regulation imposes (Article 13, paragraph 4) on the surrogate mother the entire responsibility of entrusting the child to the Department of Youth Protection, confronting her with a moral and ethical dilemma .
Then comes the question of insurance.
Expenses incurred by the surrogate mother that may be reimbursed are not necessarily included in the agreements.
This is particularly the case for life insurance and disability insurance premiums.
It only depends on the goodwill of the prospective parents to take out life insurance for the surrogate mother's family in the event of death in the context of a GPA or disability insurance for herself.
The Quebec legislator refused to force them to do so, with the Minister of Justice, Simon Jolin-Barrette believing that there would be financial issues for prospective parents.
How can we claim that a woman whose sexual relations are subject to a contract and for whom the time during which she will be allowed to hold her child in her arms after birth is timed, that she "
keeps her hand along the process”
?
Collective forum
GPAs are most often pregnancies resulting from in vitro fertilization (IVF).
The risks associated with this type of pregnancy are recognized as higher than those associated with spontaneous pregnancies.
The Quebec regulation on surrogacy (Article 13, paragraph 2) also specifies that the surrogate mother
“knows that the single person or the spouses who formed the parental plan are not responsible for these risks”
.
The surrogate mother will have no recourse if she loses the use of her uterus or her reproductive capacities as part of a surrogacy.
Their dependent family will not be able to sue the prospective parents or the clinic in the event of their death.
We know of no equivalent of contracts where only one party takes all the risks and the other party gets all the profits.
This seems to us to go against the legal principle of public order.
Chantal Collard and Geneviève Delaisi de Parseval affirm that
“under the terms of this law, the intended parents as well as the surrogate mother must be domiciled in Quebec for at least one year before requesting prior authorization”
.
This is incorrect information.
The law adopted on June 6, 2023 continues to allow Quebecers to use surrogate mothers domiciled outside Canada (Article 2, paragraph 3).
The ethics of the Quebec legislator regarding human commodification seem to stop at the border of Canada.
From June 2024, the rules will be slightly modified and a list of
“designated”
countries will be communicated, countries from which the government will recognize the parentage of children born from surrogacy.
This provision was set out in Bill 12.
According to Chantal Collard and Geneviève Delaisi de Parseval, the Quebec surrogate mother
would “keep control”
throughout the GPA process.
Lawyers reported to a Canadian university researcher numerous renunciations on the part of surrogate mothers of their fundamental rights in Canadian contracts: renunciation to speak freely about their experience, renunciation of the confidentiality of their medical files, restriction of their travel, etc. .
How can we claim that a woman whose sexual relations are subject to a contract and for whom the time during which she will be allowed to hold her child in her arms after birth is timed, that she "
keeps her hand along the process”
?
Read alsoProfessor René Frydman: “GPA is a biological, social, psychological aberration”
The most misleading information is undoubtedly this one:
“[…] there is obviously neither anonymity nor secrecy: we know, by definition, who the surrogate mother is”
.
If the prospective parents are certain of knowing the surrogate mother, it is different for the children resulting from this practice.
Under the law, the parentage relationship with the woman who bore it
“is deemed never to have existed.”
Information concerning the identity of the surrogate mother will not be included in the child's birth certificate.
They will be recorded in a separate register to which the latter could have access at the age of 14 on condition that the prospective parents inform him of the circumstances of his birth.
If the surrogate mother has disappeared, died or does not wish to be contacted, the child will have to put up with it.
Even more damaging, the Quebec
“ethical”
legislator has maintained the possibility of using anonymous gametes during the conception of the embryo, making it impossible to access the genetic origins of the child resulting from this practice.
The latter may thus be deprived of information concerning his biological maternal parentage as well as his genetic maternal parentage if the latter differs from the first.
He may also be deprived of information concerning his paternal genetic parentage.
Chantal Collard and Geneviève Delaisi de Parseval also insist on
“the entire process being free”
.
First, remember that the process is not free for prospective parents.
Their fees feed an industry of intermediaries and service providers: lawyers, fertility clinics, insurance companies, lenders, gamete banks, pharmacology, agencies, psychologists and notaries.
This law allows all those who have sufficient financial means to recruit a surrogate mother in order to obtain a child by GPA, without evaluation of parental skills, maximum age of clients or the existence of a criminal record (except for GPAs obtained abroad).
Collective forum
A lawyer informed the government, during consultations on the bill, that she had noted payments from clients to surrogate mothers.
In doing so, it is reasonable to note that the concrete application of the law does not correspond to the legislator's intention to avoid
"commercial"
GPA .
The absence of mechanisms to control this reality seems to be of little concern to the supporters of
“altruistic GPA”
and to the legislator.
At the risk of disappointing this great enthusiasm for
“Quebec ethical GPA”
, we think it is appropriate to reveal
Canada’s well-kept
“secret” .
The Globe and Mail
published an article in 2018 entitled
“How Canada became an international surrogacy destination”
which informed that Canadian surrogate mothers were legally authorized to agree to be paid for GPAs intended for foreign clients:
“As [Canadian law ] does not apply to acts committed outside the country, foreign intended parents can offer money openly [to surrogates], provided it changes hands elsewhere.
It is conceivable that, given the choice between being paid and not being paid, Canadian surrogates - who are legally allowed to accept the money - would choose to be paid
.
This information was confirmed to us by a Canadian senator
Chantal Collard and Geneviève Delaisi de Parseval further point out that
“Quebec law speaks of “surrogate mother”, and not of “surrogate woman””
.
The word
“surrogate mother”
only appears in one place in Quebec law: in the title.
It is the expression
“woman or person who has agreed to give birth”
which has been retained in all the articles of the law.
Read also Contrary to what Clément Beaune asserts, GPA will never be “ethical”
To conclude, we suggest that the French public avoid considering Quebec law as an example and not judge it on what people say about it but on its detailed content and its application.
This law is in fact very permissive and does not protect surrogate mothers and children as it claims to do.
It allows all those who have sufficient financial means to recruit a surrogate mother in order to obtain a child by GPA, without evaluation of parental skills, maximum age of clients or the existence of a criminal record (except for GPAs obtained abroad).
Prospective parents are exempt from liability for health risks incurred by the surrogate mother, with no obligation to purchase life or disability insurance for herself and her family.
Several GPAs may be requested from a surrogate mother, which is not uncommon.
Post-mortem surrogacy is authorized: the birth of orphaned children is thus organized.
In conclusion, the public will not really be able to assess whether the Quebec law is a
“well-thought-out Pregnancy for Others protocol”
as the authors prematurely describe it, because there is no collection of systematic data that would have made it possible to measure the concrete impacts on children and women has not been provided for by law.
Innovative and revolutionary is Quebec GPA?
How can we not recognize the age-old desire to seize the reproductive capacities of women in order to appropriate their children?
Nicole Athea, gynecologist and endocrinologist, member of the collective for respect for the person and co-author - with Martine Ségalen - of the essay
The Motherhood Markets
(Odile Jacob, 2021).
Ghislaine Gendron, coordinator for Quebec of
Women's Declaration International.
Clémence Trilling, founding member of the collective “for the rights of children in Quebec”.