As first reported in La Presse last week, a Quebec court recently handed down a decision in which a non-biological father was allowed to officially adopt twin girls born to a surrogate mother in India.
As a potentially precedent setting case, it’s worth watching where the legal and political conversations go from here. The issue of third party reproduction in Canada is a complicated one. Although it is not illegal to use a surrogate mother, the governing federal legislation, the Assisted Human Reproduction Act, states that it is illegal to pay a woman for her services. In Quebec, surrogacy is explicitly discouraged; Article 541 of the Civil Code stipulates “any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.” What this means in practical terms is that surrogate mother contracts in Quebec are not legally recognized. A woman who carries the child — whether for altruistic or commercial purposes — remains the legal mother. This status cannot be altered unless the child is officially adopted.
The recent case in question involves a male couple. In 2012, they paid $30,000 to a reproductive clinic in Bombay to retain the services of a surrogate mother. The woman was inseminated with sperm provided by one of the men. As the biological father, his name was on the birth certificates from the outset. Once the children were brought from India to Canada, the other partner sought to officially adopt the baby girls. The Quebec government in turn contested the addition of the second non-biological father’s name on the birth certificate, claiming that doing so would be tantamount to being complicit in the exploitation of women’s bodies and commercialization of children, and thus an affront to human dignity.
But the court decision rendered July 6 came down on side with the couple, not the Quebec government. Judge Viviane Primeau pulled apart two key issues: the best interests of the child and the contentious debate surrounding procreative tourism. She ruled that children should not become victims in the tug of war surrounding the use of overseas paid surrogates.
For some, this decision is welcome news. But others have argued that the court decision clears the way for procreative tourism while leaving unacknowledged the exploitation faced by many women in a largely unregulated industry, particularly in developing or underdeveloped countries.
Although surrogacy is legal in some U.S. states, many couples prefer to head to other countries where the process is cheaper and the success rates are high. Only a few countries — Russia, Ukraine and Georgia for example — allow surrogacy for commercial gain, beyond compensating bare expenses.
India is one of the few countries where paid surrogacy is legal, although last year the government said it would prohibit foreigners from hiring surrogate mothers over increased fears of an unwieldy and shadowy industry after the number of surrogacy clinics ballooned in recent years. In 2015, the Guardian reported that the industry was worth US$138 million and growing at a rate of 20 per cent a year.
Agree with it or not, the reality is that as long as commercial surrogacy remains illegal in Canada, procreative tourism is likely to remain a popular option for would-be parents unable to have their own children, provided they possess the means to pay. The lack of comprehensive guidelines may allow for surrogates overseas — often poor, young, illiterate and uneducated — to be underpaid and exploited by commercial clinics that have no regard for their health or well-being.
It is time for Quebec to open a discussion about how to ensure that higher ethical standards can be met.
Since 2009, there have been four Court of Quebec cases in which intended parents have been permitted to adopt children born from a surrogacy arrangement. This latest case nudges the conversation another step forward.
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