Federal Baby?
I’ve just noticed the CBC story concerning the Quebec couple who paid a woman $20,000 to be surrogate mother, received the baby, and were refused an adoption by the court when they applied and revealed all of the details concerning the genesis of the child. The takeaway line from the judgment is the peculiar statement that “Cette enfant n’a pas droit à une filiation maternelle à tout prix,” [“This child has no right to a declaration of maternity in spite of everything.” — my weak translation] which the news has picked up as meaning the child has no legal mother.
The major source of the stress in the case is the conflict between Quebec and federal law when it comes to surrogacy. Section 541 of the Civil Code forbids surrogacy agreements:
Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.
whereas the federal Assisted Human Reproduction Act merely forbids paying or agreeing to pay consideration to the surrogate mother, implicitly licensing other surrogacy agreements:
6. (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid…
with the cover-my-constitutional-ass kicker that:
(5) This section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.
(Other aspects of the federal legislation have been ruled ultra vires the federal Parliament by the Quebec Court of Appeal, which decision has been accepted for review by the Supreme Court.)
This case presents a tangle that goes well beyond what I might do on Slaw to critique. I can understand the court’s reluctance to watch couples ignore Quebec law; and it is, technically, the adults who are seeking the adoption and who do not come to court “with clean hands.” On the other hand, of course, it is the honest couples — those who fess up to the child’s true origin — who feel the court’s wrath, not those (the majority?) who lie about the existence of a surrogacy agreement. And overall lies the ruling principle (sole principle, really, but that is simply to restate the tangle) where the fate of a child is concerned, the child’s best interests, which, without any doubt dictate adoption by the de facto mother.
The CBC story quotes University of Sherbrooke law professor Michel Tétreault as saying that the judge had no choice but to “send a message” that, in the words of the judge, the end does not justify the means. I think I’d suggest that however galling it may be for a court to be manipulated into a situation such as this, we don’t use infants to send messages in our society (“infant” having, after all, the original meaning of incapable of speech). Of course, the fact of the matter will be that the child will continue as before to reside with the couple who applied for adoption. The biological father has all the necessary legal standing to manage the child’s affairs; though it would have been sensible, I should have thought, to have awarded his wife joint custody with him so that she, too, would have proper standing in front of bureaucracy. Failure to do so might have placed the child in jeopardy.
In addition to all of this is the fact that the child was the product of artificial insemination of the surrogate mother, which means, I should have thought, that she would be the child’s mother in the eyes of the law.
I do not understand why the unenforceability of the surrogacy agreement under Quebec law would prevent the adoption. It would prevent the enforcement of the agreement if the surrogate mother wanted to keep the child – though even then, genetically the baby is half the father’s.
Maybe the reasoning is that the Civil Code makes the baby the birth mother’s, and the circumstances of the birth did not justify a change of that status, i.e. did not make the baby adoptable. I don’t find that persuasive as a matter of policy.
There was no finding that the father’s wife was not fit to be mother, so far as I can tell, except that she was party to – or at least consented to – a void contract (not one that the law made an offence, though.)
The ‘message’ of disapproval of surrogacy would best be sent in a case where the surrogate mother decided to keep the baby.
I am not sure the case raises any real difficulties of conflict between Quebec and federal law.
You’re right, John, that there’s no direct conflict between federal and Quebec laws on this. I think what I should have suggested is that there’s a conflict between attitudes or policies, and that isn’t even very strong, given the explicit federal bow to provincial jurisdiction.