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Parental Status is a Legal Construct

In Canada, “parental status” (the rights and duties of a parent) does not always attach to the person who is a child’s biological parent. For most people, becoming a parent in the real world and the legal world happens simultaneously. Two people get married, have a child, receive a birth certificate for their newborn, and life goes on – the law and the real world move along happily side-by-side.

Sometimes, however, the law simply does not match reality. There are times when the law partners with technological advances to legitimize human reproduction outside the bounds of the created order, like when couples use a surrogate to have a child. Surrogacy splinters parental status, especially for the mother. Instead of the genetic mother (the one who produces the ovum to be fertilized), the birth mother (the one who carries the child), and the “intended” mother (the one who is going to parent the child) being one and the same person, there can now be two or even three mothers.

Fracturing Motherhood Allows the Baby Business to Flourish

Canada passed the Assisted Human Reproduction Act in 2004, in an attempt to regulate certain “activities of concern” like human cloning or paying surrogate mothers. But it did not stop people from making business deals to have kids. Technically, Canadian law still forbids “renting” a woman’s womb to have a baby, but it’s been 10 years since that law was enforced. Renting of wombs does happen, with payment made informally because prospective parents are understandably worried about leaving a “damning paper trail.”

Couples who want a child but are unwilling or unable to be pregnant themselves can sign “surrogacy agreements” with a woman willing to act as a surrogate. These contracts state that the surrogate will give up the child upon birth. In most provinces, surrogacy contracts are recognized as valid evidence of parental status. In other words, if a surrogacy agreement has been signed, the province will issue a birth certificate that declares that the couple contracting for the child are the parents and have full parental status. The surrogate mother who has spent nine months of her life nurturing this child will have no parental status whatsoever. Sometimes these laws border on the bizarre. For example, in Ontario, the government will recognize a surrogacy agreement (and issue a birth certificate) that says that one child can have up to four different parents – one mom with three dads or four moms? – seemingly anything goes.

If you are interested in reading more about federal laws around surrogacy, please read ARPA Canada’s detailed surrogacy policy report or our much more brief one-pager.

Québec says “no”

Okay, so the federal government legalized altruistic (i.e., not paid) surrogacy in 2004. But were the provinces really required to recognize contracts that created multiple-parent families? No! In fact, Section 6(5) of the federal Assisted Human Reproduction Act explicitly permits provinces to legislate on the validity of all types of surrogacy agreements.

Québec stands out as a province that refused to allow for surrogacy agreements. Article 541 of the Quebec Civil Code simply said “[a]ny agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null” (emphasis added). Within Québec’s legal tradition, a declaration of absolute nullity is only applied to business arrangements that are contrary to public values. Québec took a moral position and legislated accordingly.

Frustrated with Québec’s approach, some people tried to skirt the law. One couple used a surrogate to have a child and did not write a name down in the “mother” section of the birth certificate. Then the intended mother petitioned the court to be allowed to adopt the child. For a time, the courts rejected these attempts as well.

Quebec Backs Down

Unfortunately, all this is set to change. Québec’s Assemblée Nationale is in the middle of passing Bill 12, which would grant parental status to all spouses or single persons who embark upon a “parental project” with a surrogate.  This is sad news because it further entrenches the fracturing of motherhood and normalizes the intentional infliction of a “primal wound” on an infant child. Thankfully though, the Assemblée Nationale is avoiding a major mistake in provinces where surrogacy contracts are the norm. If Bill 12 passes, upon giving birth surrogate mothers would have the option of keeping the child and the written agreement she signed with the intended parents would no longer apply. ARPA Canada has noted that there are several reported cases of intended parents manipulating surrogate mothers or denying them any access to the child they carried for nine months. Bill 12’s renunciation option would serve as a corrective in these sad circumstances.

The Larger Lesson to Learn – Let’s Make Use of Federalism’s Gifts

Québec’s movement to sanction surrogacy agreements is disappointing. Still, there is a lesson to be learned from Québec’s last 19 years of disallowing surrogacy within its borders. There is a strange phenomenon in Canada where once the federal government decriminalizes something (think abortion and euthanasia), the provinces seem to feel the need to not only facilitate but also fund and promote that thing that was once criminal. However, the provinces simply do not need to do this. Québec, at least until Bill 12 passes, shows that it is possible to take a different path than the federal government on social issues.

It is important to note that, although the Assisted Human Reproduction Act stated that the provinces had permission to legislate on surrogacy contracts, constitutionally, Québec had the power to do that anyways. The power to legislate about contracts falls squarely within provincial jurisdiction. What if more provinces used their powers when it came to bigger social issues? For example, what if provinces exercised their power over the “establishment, maintenance, and management of hospitals” by inserting themselves into the MAiD conversation and pushed back with at least some restrictions? Most of public discourse, and certainly the talking heads, pretend that, because the Supreme Court struck down Canada’s prohibition on euthanasia, governments of all stripes are obliged to make death accessible to all. Again, this is simply not the case. To put it simply, MAiD happens in hospitals and is performed by doctors, and the provinces get to say how hospitals are run and how doctors are licensed.

There is a certain beauty to our federal structure because it allows for a government-to-government debate. Some provinces are more vocal than others, but the moral of the story here is this: just like Québec, the other provinces can be encouraged to speak up and take a stand on social issues that violate time-honoured moral codes and, by doing so, they can make a difference.