Judge denies adoption in surrogacy case

$20,000 Paid

Graeme Hamilton, National Post  Published: Friday, March 13, 2009


The Quebec couple had tried everything to conceive a baby since marrying in 2002 -- surgery, artificial insemination, in-vitro fertilization. When their attempts failed, they turned to the Internet and found a woman willing to serve as a surrogate mother in exchange for $20,000. The surrogate was artificially inseminated with the husband's sperm, and last year she gave birth to a healthy baby girl.

The baby was immediately turned over to the couple, with only the father's name listed on the birth certificate. All that remained was to have his wife adopt the infant, and the couple would be legally recognized as her parents.

But in a decision that has come to light this week, a Quebec Court judge refused the woman's request to become the baby's adoptive mother. The "convoluted and carefully planned parental project" was an attempt to circumvent an article of the Quebec Civil Code that declares all such surrogate contracts illegal, Judge Michel DuBois ruled.

It is not the case, he concluded, that the interests of the child are always paramount. "This child does not have the right to a maternal relationship at any price," he wrote. "To give effect to the father's consent to his child's adoption would be for the court, in these circumstances, a sign of willful blindness and confirmation that the end justifies the means."

The couple, who are not named in the decision in order to protect the child, have declined to discuss their situation, as has their lawyer. They have not appealed Judge DuBois' Jan. 6 ruling.

The decision offers a rare glimpse into a practice that experts say is more common than people might think. It is an offence under the federal Assisted Human Reproduction Act to offer payment to a surrogate mother, but there have been no prosecutions since the law came into effect in 2004. A National Post investigation last month found Canadian women using the Internet to offer their services as surrogate mothers or egg donors.

Alain Roy, a professor of child and family law at the Universite de Montreal, said Judge DuBois is the first judge in Quebec to come down forcefully against a practice to which others have turned a blind eye.

"Here, for once, there is a judge who said, 'Wait a minute, adoption is one thing, the interest of the child is one thing, but I want to know the context. If the context in Quebec is considered contrary to public order, I do not want to indirectly sanction it,' " Mr. Roy said.

He added that in other Quebec adoption cases involving children from surrogate mothers, judges have chosen not to seek too many details. Faced with a fait accompli, they have ruled that the interests of the child require that the adoption be approved, he said.

The couple in the recent case told the court they researched potential surrogate candidates on the Internet to identify someone who was fertile, in good health and available. The woman they chose already had five children of her own and had been a surrogate mother before. The couple said they were satisfied that she had good "references" and agreed to pay $20,000 to cover the "expenses and drawbacks" of the pregnancy.

As a result of the ruling, the child will have no legal mother. Mr. Roy said it puts her in an unusual but not unprecedented situation.

He noted that since 2002, Quebec law has allowed lesbians to have children without a father being registered on the declaration of birth. Ultimately, he said, it is up to legislators to determine whether the prohibition on surrogate motherhood still corresponds to societal values. "It is time in Quebec for all of family law to be overhauled to adjust it to new realities," he said.