2016 QCCQ 6872, 2016 QCCQ 6872

Unofficial English Translation Adoption — 1631 2016 QCCQ 6872 JP1645 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ...

LOCALITY OF … “Youth Division” N°: 505-43-002427-134 DATE: July 6, 2016 ______________________________________________________________________ PRESIDING: MADAM JUSTICE VIVIANE PRIMEAU, J.C.Q. ______________________________________________________________________ CONCERNING X Born on …, 2012 A Petitioner and B Impleaded party and ATTORNEY GENERAL OF QUEBEC Intervener and DIRECTOR OF YOUTH PROTECTION A Impleaded party _____________________________________________________________________ JUDGMENT ______________________________________________________________________ [ 1 ] The petitioner seeks an order of placement for the adoption of child X, born on ..., 2012, and her sister Y, born on the same date. [ 2 ] The petitioner is the de facto spouse of the children’s biological father. [ 3 ] The children were born in India through assisted procreation pursuant to a surrogacy contract [1] dated February 5, 2012. [ 4 ] Under the heading “name of mother”, the children’s birth certificate issued in India states “not known” concerning child X

and “not stated” concerning child Y. [2] [ 5 ] On October 11, 2012, the surrogate mother signed an affidavit in which she acknowledged this situation. [3] [ 6 ] On July 3, 2013, Jean-Pierre Saintonge, J., who had before him this motion, asked for the Director of Youth Protection to get involved and assigned counsel for the children. [ 7 ] On July 10, 2013, the Director of Youth Protection asked for the motion to be served on the Attorney General. [ 8 ] On August 6, 2013, the case was postponed sine die by Saintonge, J. because the Court of Appeal was set to render judgment on a similar issue, which judgment was finally rendered on June 19, 2014. [4] [ 9 ] In late August of 2014, the case was postponed to allow the examination for discovery of both the petitioner and the father by counsel for the Attorney General. [ 10 ] In October of 2014, at the request of counsel for the petitioners, the case was once again postponed because they intended to file a notice under

article 95 of the Code of Civil Procedure to have certain articles of the Civil Code declared to be constitutionally inapplicable on the basis of discrimination. [ 11 ] This notice was served on January 12, 2015. [ 12 ] The case was then scheduled to proceed on February 24 and 25, 2015, before the undersigned, on which dates evidence was presented. [ 13 ] On these dates, counsel for the petitioner waived her application under

article 95 of the Code of Civil Procedure. [ 14 ] The hearing was continued to June 9, 2015, to hear oral submissions, and then postponed to September 10, because counsel for the children requested a psychosocial evaluation of the petitioner and the father. [ 15 ] This report was completed on July 15, and oral submissions were made on September 10, 2015. [ 16 ] The Court took the judgment under advisement.

After learning that the Court of Appeal was once again hearing a case where, as in this case, the name of the mother did not appear on the child’s birth certificate, the Court suspended deliberations pending this second Court of Appeal judgment, which was rendered on January 14, 2016. [5] [ 17 ] Following that judgment, counsel were invited to submit additional arguments, which counsel for the petitioner and the Attorney General did. ISSUES [ 18 ] The issues before the Court are as follows: • Have the conditions for adoption under

article 543 C.C.Q . been met even though the children are the fruit of a gestational surrogacy agreement performed in India that includes several clauses that are allegedly contrary to Quebec law and public order? • If so, do the best interests of the children at issue take precedence over the public interest? [ 19 ] There are also questions subsidiary to these because the Court took under advisement the objections of the Attorney General to the filing of a legal opinion prepared by an Indian lawyer (exhibit R-14) and an affidavit (exhibit R-15) signed by the surrogate mother on February 20, 2015, in which she declares, inter alia , that she does not object to the father’s spouse adopting the child.

POSITIONS OF THE PARTIES [ 20 ] The petitioner argues that the best interests of the children must take precedence over the public interest and that, in this respect, the position adopted by the Attorney General gives undue weight to the public interest, given the judgments rendered by the Court of Appeal in Adoption — 1445 and Adoption — 161 . [6] [ 21 ] Furthermore, drawing on the judgment rendered by the Court of Appeal in Adoption — 161 , [7] counsel for the petitioner points out that the term “undeclared mother” in a child’s birth certificate does not ground a conclusion that there was evasion of the law. [ 22 ] She alleges that this way of doing things complies with the Indian practice to avoid children being assigned Indian citizenship so they can leave the country more easily with their intended parents, a procedure that she considers is endorsed by the Canadian government. [ 23 ] Counsel for the Attorney General asked the Court to dismiss the application, alleging that under Quebec law, the clauses in the surrogacy contract are abusive and contrary to public order. [ 24 ] They opine that the facts of this case are distinguishable from those of the Court of Appeal case in Adoption — 1445 . [8] The fact that the surrogate mother contractually waived any rights to the children to be born on pain of damages is contrary to

article 2632 of the Civil Code of Québec , which provides that no transaction may be made with respect to the status or capacity of persons or to other matters of public order. [ 25 ] Even though maternal filiation is not recognized here, as in Adoption — 161 , [9] counsel for the Attorney General submit that the cases should be distinguished because the process arises from a contractual arrangement that obfuscates the remuneration and motivation of the surrogate mother.

[ 26 ] According to the Attorney General, undertaking this process in India has made it possible to circumvent legal imperatives and violate human dignity by instrumentalizing a woman’s body and commodifying children. [ 27 ] Ultimately, she concludes that this process goes against international public order as it relates to human dignity, life, liberty and security of the person. [ 28 ] Regarding the best interests of the children, she is of the view that this condition is met because the children have the benefit of filiation with their father. [ 29 ] Counsel assigned to the children takes the position that the motion for an order of placement should be granted, first, because it would be in the best interests of the children and, second, because the adoption judgment should be rendered strictly from the point of view of the two children at issue. [ 30 ] In the opinion of counsel for the children, dismissing the petitioner’s motion would be tantamount to asking the children to bear the burden and consequences of the decisions made by their intended parents and discriminating against them because of the circumstances of their birth. [ 31 ] She submits that the best interests of the children require that the adoption issue be considered separately from any contractual issues. [ 32 ] She also argues that in light of the current legal vacuum, despite the legislative amendments proposed as early as 1988, the Court of Quebec, Youth Division, is not the appropriate forum for this debate. [ 33 ] She therefore states that all the requirements are met to allow the placement for adoption of the children, especially since the psychosocial evaluation was positive. [ 34 ] The Director of Youth Protection defers to the Court’s decision.

THE EVIDENCE [ 35 ] As previously stated, the petitioner is the de facto spouse of the children’s biological father. They met in December of 1996 and have been a couple since 2000. [ 36 ] When they were about forty years old, the desire to have children surfaced. As a same-sex couple, they felt it would be difficult to adopt internationally. As for domestic adoption, they felt that the wait times were too long and the process risky. [ 37 ] They then looked to Ontario to adopt a child from that province.

They felt that wait times to be matched were too long. [ 38 ] After that, a friend offered to carry a child for them, but this project never materialized. [ 39 ] A friend of the petitioner’s who had personally dealt with a clinic in India for the services of a surrogate mother referred them to an assisted procreation clinic. [ 40 ] This avenue appeared to have potential as it was less expensive than it would have been in other countries.

The petitioner also claims to have Indian ancestry. [ 41 ] The father and the petitioner acknowledge, however, that they did not choose Quebec because they knew that surrogacy contracts are considered void here. They felt that because the surrogacy contract was “legal” in India, there was no risk that the surrogate mother would refuse to give them the child. [ 42 ] They contacted this clinic and went to India in October of 2011. [ 43 ] An agreement was entered into, with the Rotunda Clinic acting as an intermediary.

It was a standard agreement that, according to the testimony of the biological father, varies according to whether the child is to be adopted by a couple or a single person. [ 44 ] The father adds that he did not sign the agreement with the petitioner because same-sex couples are not recognized in India. [ 45 ] The contract was therefore signed by the father, the surrogate mother, and her husband, who also waived any rights to the child. [ 46 ] The surrogate mother and her husband signed the agreement on the day of insemination, February 5, 2012.

The father had signed the agreement during his first trip to India, in October of 2011. [ 47 ] The father paid $30,000 to the Rotunda Clinic. According to the father, the clinic undertook to pay the cost of medical and psychological services, social workers, doctors, and the maternity facilities directly from this amount.

The father also took on the cost of insuring the surrogate mother’s life, any legal fees inherent to the process, and hospital costs. [ 48 ] He did not know whether any money was paid to the surrogate mother because he never received confirmation of this from the clinic. [ 49 ] He also cannot indicate whether the surrogate mother received legal advice when she signed the agreement. [ 50 ] In October 2011, the sperm donation was made and the father underwent various medical tests. [ 51 ] First, the profile of an [ translation ] “egg donor” mother was chosen by the father and petitioner, which is an anonymous

process. [ 52 ] The Rotunda Clinic chooses the surrogate mother after matching the father’s profile with the profiles of the surrogate mother and the “egg donor”. [ 53 ] Following the sperm donation, two attempts were made, the first being unsuccessful. [ 54 ] Neither the father nor the petitioner had any contact with the surrogate mother, but they were regularly kept abreast of the progress of the pregnancy by the Rotunda Clinic. [ 55 ] They knew that the surrogate mother was married and had had three children.

Her medical and family history had been verified. [ 56 ] The birth came early, taking place on ..., 2012, one week before the due date.

Consequently, the father was not present. [ 57 ] He did not meet the mother after the birth or at any point after that. [ 58 ] Following the children’s birth, on October 11, 2012, the mother provided a sworn statement whereby: • On ..., 2012, she gave birth to the two children as a surrogate mother; • In accordance with the agreement, she had given the children to the intended father, in this case the biological father; • She did not object to the father leaving India with the children; • She had received adequate compensation from the clinic and had no claim of any kind to make from the clinic and/or the biological father. [ 59 ] After that, the surrogate mother was not heard from again until February 20, 2015, when she signed a sworn statement [10] in which she asserted, inter alia , that she agreed with the application for an order of placement for adoption presented by the petitioner. [ 60 ] The Attorney General objects to the filing of this exhibit.

We will come back to this later. [ 61 ] When he arrived in India, the father stayed at the hospital for a few days and was in regular contact with the children. [ 62 ] The steps to register the birth of the children were completed by the hospital. As is common practice in India in these situations, the name of the surrogate mother does not appear on the birth certificates. [ 63 ] It is noteworthy that if the intended parents had been a married couple (man and woman), the intended mother’s name would have been entered. [ 64 ] The father indicated that he never asked that the surrogate mother’s name not appear.

The list of first names includes the petitioner’s. [ 65 ] When he left, he gave the surrogate mother a gift (a pair of earrings) through the clinic. [ 66 ] When they left the hospital, he stayed at a hotel with the children and the petitioner’s sister, who was with them for five weeks.

The father remained in India for about two and a half months. [ 67 ] The petitioner joined him there for the last weeks. [ 68 ] The father then met with a lawyer, the same one who wrote the legal opinion the petitioner wishes to adduce into evidence, so that she could help them obtain the documents that would allow them to leave the country as quickly as possible. [ 69 ] The father took steps with the Canadian embassy in India to obtain Canadian passports for the children. [ 70 ] The embassy asked him to provide the children’s birth certificates and the surrogacy contract, among other things.

The Canadian government also required a DNA test. Exhibit R-16 offers a record of this application. [ 71 ] He was asked no questions about the mother. Because their father is a Canadian citizen, the children were authorized to leave and passports were issued in November of 2012. [11] [ 72 ] According to the father’s testimony, the requirements have since been modified, as a medical visa is now necessary for the child to leave.

Furthermore, a single man can no longer be a party to a surrogacy contract. [ 73 ] When he returned to Canada, he had no problem entering the country. [ 74 ] The evidence also reveals that the children have lived with the petitioner and the father since they arrived in Canada. [ 75 ] The psychosocial report notes the following observation: [ translation ] Mr. B and Mr. A are stable, responsible persons who are capable of empathy and commitment. They are attentive, sensitive and kind to X and Y.

Since the twins’ birth, they have both shown good parental abilities toward the twins and good organizational skills about everything relating to home, children, and work. They also have a solid support network. The couple cooperated well with our service

during the evaluation process; they answered our questions honestly. Our evaluation allows us to recommend, from a psychosocial standpoint, Mr. A’s plan to adopt the children of his spouse, Mr. B, that is, the children X and Y, both born on ..., 2012. [12] [ 76 ] On May 16, 2013, a special consent to adopt was signed by the father in favour of the petitioner. [ 77 ] Both were hoping for the petitioner to adopt so that complete filiation would be established for the children and the petitioner would have as many rights in respect of the children as the father does in the event of separation or death.

THE LAW The relevant legislative provisions [ 78 ] The application for an order of placement of a child for the purpose of adoption must be analyzed according to the following provisions of the Civil Code of Québec : 543. No a doption may take place except in the interest of the child and on conditions prescribed by law . No adoption may take place for the purpose of confirming filiation already established by blood. 544. No minor child may be adopted unless his father and mother or his tutor have consented to the adoption or unless he has been judicially declared eligible for adoption. 551.

When adoption takes place with the consent of the parents, the consent of both parents to the adoption is necessary if the filiation of the child is established with regard to both of them . If the filiation of the child is established with regard to only one parent, the consent of that parent is sufficient. 555. Consent to adoption may be general or special; special consent may be given only in favour of an ascendant of the child, a relative in the collateral line to the third degree or the spouse of that ascendant or relative; it may also be given in favour of the spouse of the father or mother.

However, in the case of de facto spouses, they must have been cohabiting for at least three years . (Emphasis added.) [ 79 ] This analysis must also be based on more general provisions concerning children’s rights: Civil Code of Québec : 32. Every child has a right to the protection, security and attention that his parents or the persons acting in their stead are able to give to him. 33. Every decision concerning a child shall be taken in light of the child's interests and the respect of his rights.

Consideration is given, in addition to the moral, intellectual, emotional and physical needs of the child, to the child's age, health, personality and family environment, and to the other aspects of his situation. 522. All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth.

Article 3 of the Convention on the Rights of the Child : 1. In all actions concerning children, whether undertaken by public or private social welfare institutions, courts of law, administrative authorities or legislative bodies, the best interests of the child shall be a primary consideration.

2. States Parties undertake to ensure the child such protection and care as is necessary for his or her well-being, taking into account the rights and duties of his or her parents, legal guardians, or other individuals legally responsible for him or her, and, to this end, shall take all appropriate legislative and administrative measures. 3.

States Parties shall ensure that the institutions, services and facilities responsible for the care or protection of children shall conform with the standards established by competent authorities, particularly in the areas of safety, health, in the number and suitability of their staff, as well as competent supervision. [13] [ 80 ] In the case before us, we must also consider the impact of other legislative provisions in the Civil Code of Québec division dealing with the filiation of children born of assisted procreation. Civil Code of Québec 538.

A parental project involving assisted procreation exists from the moment a person alone decides or spouses by mutual consent decide, in order to have a child, to resort to the genetic material of a person who is not party to the parental project. 541. Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null. Assisted Human Reproduction Act 3. The following

definitions apply in this Act. “surrogate mother” means a female person who — with the intention of surrendering the child at birth to a donor or another person — carries an embryo or foetus that was conceived by means of an assisted reproduction procedure and derived from the genes of a donor or donors. 6.

(1) No person shall pay consideration to a female person for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.

(2) No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services.

(3) No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it.

(5) This

section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother . [14] [ 81 ] Finally, the Youth Protection Act states: 135.1 Whether the placement or the adoption takes place in Québec or elsewhere and whether or not the child is domiciled in Québec, no person may (

a) give, receive or offer or agree to give or receive, directly or indirectly, a payment or a benefit either for giving or obtaining a consent to adoption, for finding a placement or contributing to a placement with a view to adoption or for obtaining the adoption of a child; (

b) contrary to this Act or to any other legislative provision relating to the adoption of a child, place or contribute to the placement of a child with a view to the child’s adoption or contribute to the child’s adoption; (

c) contrary to this Act or to any other legislative provision relating to the adoption of a child, adopt a child. [15] The case law [ 82 ] Since this case was brought before the Court, the Court of Appeal of Quebec has twice been asked to rule [16] on similar applications.

In each of these cases, the parties had resorted to assisted procreation, where an egg from an anonymous donor was inseminated with the sperm of the impleaded party and transferred to a woman who had agreed to carry the child. [ 83 ] In the first case, [17] the name of the child’s mother appeared on the birth certificate and a special consent had been signed by both the father and the mother in favour of the intended mother, the spouse of the child’s father.

[ 84 ] After reviewing the case law concerning the adoption of children born of surrogate mothers and considering the commentary on the subject, the Court of Appeal concluded: [ translation ] [61] I am of the view that the most just analysis and the most measured effects of

article 541 C.C.Q . on filiation by adoption is that set out by Tremblay J. in Adoption – 0918571 in which he wrote: [ translation ] The verbal agreement between the applicant-adopter (genetic mother) and the mis en cause (genetic father) on the one hand and the applicant-adopter and the mis en cause (surrogate mother) on the other is probably absolutely null under art. 541 of the Civil Code of Québec . This means that the applicant-adopter A and the mis en cause B could not, for example, have forced the mis en cause C to continue her pregnancy if she had decided to interrupt it.

It also means that the procreation and gestation agreement could not have been invoked if, to give another example, the mis en cause C had refused to sign a consent to adoption. Both of these examples were cited before the parliamentary committee while art. 541 was under study. But this is not the type of question that I must decide. I must decide on the status of an existing child who is entitled to have his rights fully respected, particularly those in arts. 32, 33 and 34 of the Civil Code of Québec .

The Court, seeing that the interests of a minor were at issue, could have adjourned this hearing so that the child could get representation (394.1 C.C.P .), which did not prove to be necessary since the court sitting in adoption has the ex officio power to safeguard the interests of a minor, as set out in the above-cited articles 543, 32, 33 and 34 of the C.C.Q ., but also implicitly in articles 36.1, 46 and 394.1 of the Quebec Code of Civil Procedure .

It is thus a matter of rendering a decision from the point of view of the child and not from that of individuals who, it bears repeating, in good faith and from sheer altruism on the part of the mis en cause C, entered into an agreement for assisted procreation. This analysis appears to me to be perfectly consistent with that of several of the authors quoted or referred to above.

In my view, this is the regime that should govern an application for placement for adoption following a surrogacy . [18] (Citations omitted.) (Emphasis added.) [ 85 ] In the second case, [19] the surrogate mother was undeclared in the child’s birth certificate and only the father consented to the adoption by his spouse. [ 86 ] About the absence of maternal filiation in the birth certificate, the Honourable Marie-St-Pierre, J.A., had the following to say on behalf of the Court of Appeal: [ translation ] [80] Only the mother could declare the child’s filiation with regard to herself (art. 114 C.C.Q .).

No one else (not the delivery doctor, registrar of civil status, respondent, or anyone else) could do so in her stead without her express authorization (art. 114 para. 2 C.C.Q .).

Since the very first day of her involvement in the parental project, she expressed her will not to do so, which she reiterated in a free and enlightened manner after the birth and while under oath during her appearance before the trial judge. … [85] In this case, when she described under oath the role she played and reiterated her wish for a happy denouement of the appellant and respondent’s parental project, there was in my view no reason to find, as the trial judge did, that the application for an order of placement for adoption on the sole basis of the respondent’s consent was the result of an [ translation ] “unlawful process, contrary to public order”. [20] [ 87 ] The Court of Appeal also reiterated many of the remarks of Morissette, J.A. in Adoption — 1445 asserting that the judgment put an end to the [ translation ] “controversy in the case law concerning the adoption of children born of parental projects involving surrogate mothers.” [21] [ 88 ] While that case is similar to the one before us, it can be distinguished because here, the services of a female progenitor and a female gestator were arranged in India through an assisted procreation clinic. [ 89 ] In this respect, the situation presents some similarities with the case recently before Louis Lacoursière, J., [22] who had to decide not whether to make an order for the child’s adoption but whether to homologate a judgment rendered in Pennsylvania. [ 90 ] In that case, the petitioners, one of whom was the child’s father, had used the services of a surrogate mother living in the United States.

An agreement was signed pursuant to the laws of the state of California. The filiation of the child was established by judgment in Pennsylvania. [ 91 ] The Superior Court found that there was cause to recognize this filiation in Quebec. The judgment added: [23] [ translation ] [111] The Court of Appeal ( in Adoption – 1445 ) and numerous authors (cited above) establish that Canadian citizens enter into surrogacy agreements not only in Quebec but also abroad. While it is clear that a court cannot give effect to such an agreement under

article 541 C.C.Q ., it may intervene to rule on the filiation of children born of such agreements. [ 92 ] Before that judgment, our colleague, Louis Grégoire, J., was also called upon to consider this question. That case dealt with same-sex spouses who approached a California agency to hire the services of a surrogate mother. An agreement was also reached and the intended parents paid for the costs inherent to the process. [ 93 ] That situation can nevertheless be distinguished from the one before us because in that case the surrogate mother gave birth in Quebec and signed a special consent to adoption.

The judge concluded: [24] [23] [ translation ] Commentators are not unanimous regarding the lawfulness of the approach taken by the applicant. Some of them, however, recognize the validity of this way of doing things. With respect for the contrary opinion, the undersigned notes that if the legislature had wanted to exclude the case currently before us when it amended the Civil Code of Québec (and particularly when it added articles 539.1 and 578.1 ), it would have said so in articles 522 , 523 , and 541, listed here, or in the

chapter on adoption, which it did not do. Thus, the absolute nullity contemplated in

article 541 C.C.Q. affects only the contracting parties. (Citations omitted.) [ 94 ] Finally, it should be pointed out that since the Court of Appeal judgment in Adoption — 1445 , [25] other judges of the Court of Quebec have also heard applications for orders of placement regarding children born in India to Indian surrogate mothers and Quebecois fathers. [26] [ 95 ] As in this case, surrogacy agreements were reached in those cases through assisted procreation clinics.

In both cases, the motions for orders of placement were granted. [ 96 ] Sophie Gravel, J. [27] based her decision on the following considerations: [ translation ] [49] The market for paid surrogate mothers is growing in India because costs are low and wait times for the couple are minimal. [50] The legislature is concerned with protecting personal integrity and not encouraging the commodification, exploitation and objectification of children. [51] The Civil Code of Québec provides for the absolute nullity of surrogacy agreements, but both here and abroad courts have observed the formation and performance of such agreements.

Children are thus born to surrogate mothers who often, have been remunerated. [52] That being so, the Court must now decide whether the conditions to make an order of placement are met.

It is not the Court’s role to sanction the conduct of the parents or rule on the validity of an agreement that has now been performed. [53] Considering the unequivocal special consent from the biological father in favour of the petitioner and the compliance with the provisions of the Civil Code of Québec respecting special consent, the Court finds that the requirements to make an order of placement for adoption have been met. [54] Indeed, it would be contrary to the best interests of the child to deprive him of filiation due to the circumstances of his birth or conception.

As in the Court of Appeal judgment, the issue of the validity of the surrogacy contract must be distinguished from the adoption of the child to be born.

In this case, the parents availed themselves of the possibilities offered by medical science to have a child, and the evidence adduced does not justify a conclusion that they were not open about this. [ 97 ] Alain Brillon, J. took the same approach. [28] Scholarly Commentary [ 98 ] The opinions of authors are divided as to the lawfulness of an application for an order of placement for adoption of a child born as a result of an agreement in which a woman undertakes to carry a child for another. [ 99 ] Morissette, J.A. outlined these views in Adoption — 1445 , [29] . but in its analysis, the Court of Appeal accepted the point of view of some of the commentators whereby the nullity of surrogacy contracts should not have an impact on the status of the child. [ 100 ] After noting the concerns of authors Jean Pineau and Marie Pratte in their treatise entitled La famille about the consequences of the duality between respect for public order and the best interests of the child, Morissette, J.A. stated: [30] [ translation ] [53] Recently, several excellent articles have appeared in which other authors, after carrying out a systematic review of the case law considered above, express the same opinion as Professors Pineau and Pratte.

I refer in particular to Professor Giroux, in an

article I have referred to above, 55 as well as Professor Bureau and his co-author, Édith Guilhermont. 56 An even more recent text by Professor Benoît Moore reconsiders the issue, focusing the analysis on

article 541 C.C.Q . and its impact on adoption following a surrogacy situation. 57 According to this author, the nullity specified in this provision is still necessary to neutralize the potential (and, I would add, undesirable) effects of gestational or reproductive contracts. It is insufficient, however, to [ translation ] "have any effect whatsoever on third parties, particularly on the filiation of the child, who is the object of the contract". 58 (citations omitted.) [ 101 ] More recently, in the wake of the Court of Appeal judgment in Adoption — 1445 , [31] Professor Anne-Marie Savard [32] also

addressed the state of the law and the ways to establish filiation following a gestational surrogacy. [ 102 ] She is of the view that adoption by special consent to establish the filiation of the child in such a case is disputable and favours instead the establishment of rules in the

chapter concerning the filiation of children born of assisted procreation. [ 103 ] Nevertheless, referring to the Assisted Human Reproduction Act and

article 541 C.C.Q ., she states: [ translation ] Consequently, moral choices were made in this country on that subject. If Parliament had wanted to prohibit the practice of gestational surrogacy, for one of the reasons listed above for example, it could have done so as it did for some practices. It did not, however, and gestational surrogacy is legal in Canada, as it is in many other jurisdictions, and

article 541 of the Civil Code cannot modify this reality in Quebec. [33] [ 104 ] In this same collection of essays, Professor Mireille D.-Castelli discusses the scope of the Court of Appeal judgment in Adoption — 1445 : [ translation ] To establish the bond of filiation between the intended parent (intended mother or intended father in the case of same-sex parenting) and the child, it is necessary to resort to adoption, which occurs by special consent in favour of the spouse of the declared father in the act of birth.

This possibility, the subject of varying opinions in commentary and case law, was confirmed by the Court of Appeal on June 10, 2014, even if it appears unusual to give effect to an agreement that is absolutely null. But as Professor Carmen Lavallée foretold, filiation of the intended mother or the spouse of the father in a same-sex couple who have formed a parental project is not established through the application of the agreement (as pointed out by the judge in Adoption — 10329 and Adoption — 10330 ), but on the basis of the best interests of the child, through adoption by special consent.

Evidence that the gestational or reproductive agreement exists is almost indispensable to show the complete and continuous agreement of the various parties involved (surrogate mother and intended parent). [34] ANALYSIS [ 105 ] Since these last two Court of Appeal judgments addressing the subject, it is now clear in both case law and commentary that the controversy on the lawfulness of adoption by special consent appears to have faded, whether or not the surrogate mother is identified by name in the act of birth. [ 106 ] What is the status, however, of an application for an order of placement made further to a surrogacy agreement entered into in India via a specialized clinic, when it is alleged that several clauses of this agreement are abusive and contrary to public order?

Conditions for adoption [ 107 ]

Article 543 C.C.Q . provides that adoption may take place only in the best interests of the child and under the conditions provided by law. [ 108 ] As the Supreme Court has already stated, the best interests of the child is a powerful legal principle [35] which we will revisit. First, however, the Court will consider the conditions set out in the law for applications to adopt a child. [ 109 ] With respect to adoption, several authors and court rulings have already pointed out [36] that the best interests of the child is not sufficient in itself.

Compliance with the rules prescribed by law must be ensured, and the conditions applicable to the adopter and the child must be met. Conditions prescribed by law [ 110 ] What scope must we give the expression “on the conditions prescribed by law” in

article 543 C.C.Q. ? [ 111 ] The petitioner argues that both Quebec and Indian law were complied with. • Indian Law [ 112 ] The petitioner submits a legal opinion [37] on the rules governing gestational surrogacy in India prepared by an Indian lawyer. [ 113 ] The Attorney General objects to the filing of this opinion, arguing that it does not meet the requirements of

article 2809 C.C.Q . and that this lawyer does not have the requisite independence to act as an expert or jurisconsult because she is with the same firm as the one that acted to obtain the children’s birth certificates from the Indian authorities. [ 114 ] Counsel for the children argues that part of this opinion should be accepted.

This lawyer is not the one who drafted the surrogacy contract (R-3) or the affidavits filed under R-4; she acted only after the birth of the children to help their father obtain the birth certificates. [ 115 ] The Court, after considering exhibits R-9, R-10, and R-11, which state not the law but the practices surrounding surrogacy in India, notes that part of this lawyer’s legal opinion corresponds to what appears in these documents and that the surrogacy agreement and the process undertaken in this case was, in many respects, in accordance with the information therein. [ 116 ] Although the Court assigns low probative value to this opinion, it nevertheless accepts the elements that correspond with the documents filed under R-9, R-10, and R-11.

The Court excludes, however, the analysis of these elements in relation with the facts at issue, a responsibility that falls to the Court.

[ 117 ] The Court therefore accepts the following aspects of the evidence submitted in this respect: • When the impleaded party and petitioner undertook the process, there was no law in India concerning surrogacy; this practice was instead governed by the guidelines prepared by the ICMR (Indian Council of Medical Research); [38] • Assisted procreation clinics in India (ART) are governed by rules of ethics; [39] • The Supreme Court of India has recognized that surrogacy contracts are valid, govern the parties, and are enforceable under the Indian Contract Act , 1872.

This judgment was not filed, however; • When the impleaded party and petitioner undertook the process, a legislative bill on the regulation and supervision of gestational surrogacy was being studied; • This bill provided that the child born to a surrogate mother is the child of the intended parent(

s) and not of the surrogate mother; • It also provided that the surrogate mother must waive any parental rights, which are then attributed to the intended parents, whose names will appear on the child’s act of birth. The child, therefore, will not have Indian citizenship. [ 118 ] From all of the evidence, the Court therefore accepts that the birth certificate of a child born to a surrogate mother is issued to indicate that the mother is “Undeclared”. [ 119 ] Basically, the process followed in this case appears to correspond with the one recommended in the bill.

The absence of maternal filiation on the birth certificates is not the result of a request by the petitioner or the impleaded party. • Quebec law [ 120 ] The Attorney General maintains that the expression “and on the conditions prescribed by law” is not limited to the provisions in the

chapter on adoption but that it refers to all relevant legislative provisions in effect in Quebec and Canada. [ 121 ] In support of this argument, it adds that when the legislature wishes to refer to a particular division of the Civil Code , it says so by stating [ translation ] “set out in this

chapter or in this division”. [ 122 ] The Attorney General therefore refers to certain provisions of the Civil Code and the Charter of human rights and freedoms , the surrogate mother’s right to autonomy and integrity, which is violated by some of the clauses of the agreement, the waiver of any liability incurred by the Rotunda clinic by the parties to the contract, and the surrogate mother’s waiver of her claim to motherhood, which is contrary to

article 2632 C.C.Q . [40] [ 123 ] It also alleges an imbalance of power between the parties to the contract, given the surrogate mother’s possible financial motivation to enter into such a contract. [ 124 ] It argues that by choosing to go to India to obtain the services of a surrogate mother, the impleaded party and the petitioner deliberately circumvented Quebec law, and several clauses in the gestational contract are abusive and contrary to our legal principles and to public order. [ 125 ] In the Attorney General’s opinion, by acting thus, they circumvented legal imperatives and violated human dignity by instrumentalizing the woman’s body and commodifying the child. [ 126 ] With respect to the argument that the conditions set out in law to order the adoption of a child do not refer only to those in the

chapter on adoption, we point out that this aspect was not considered by the Court of Appeal in Adoption –1445 . [41] Indeed, regarding

article 541 C.C.Q ., footnote 82 of that judgment adds the following: [ translation ] On this subject it is interesting to note that

article 541 was initially in Division III ("On medically assisted procreation") of

Chapter 1 ("Filiation by blood") of Title Two ("Filiation") of Book Two ("Family") of the Civil Code of Québec . At the time, the provision read as follows: Procreation or gestation agreements on behalf of another person are absolutely null. In 2002, the legislature intervened by enacting the Act instituting civil unions and establishing new rules of filiation, S.Q. 2002, c. 6 , making substantial amendments to the Civil Code , following which the new version of

article 541 ("Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.") is in

Chapter I. 1 ("Filiation of children born of assisted procreation") of Title Two ("Filiation"). In short, this provision was never part of

Chapter Two ("Adoption") of Title Two of Book Two of the Civil Code . These structural considerations are significant in the codification of the civil law and it follows that

article 541 does not constitute a "condition prescribed by law" within the meaning of

article 543 . [42] (Emphasis added.) [ 127 ] Furthermore, Morissette, J.A., [43] referring to this footnote, concluded:

[ translation ] [59] Surrogacy contracts are absolutely null and contravene a rule that the legislature has determined is a matter of directive public order. The consequences of such a choice are serious, and the contract may in no case be binding. But that does not mean that all of its effects, even those that are indirect or affect third parties, must ipso facto be suppressed by the law. Here, the child is a third party.

He is more than an object. … [70] The notion of public order is certainly a necessary one in this area: the commercial exploitation or reification of the human person is a tendency that the law must resist.

But invoking the notion of public order arising from the law of obligations in the specific context of a case like this one assigns the notion a scope that it does not have – it is not sovereign or peremptory. [ 128 ] While we may question the moral and ethical aspects of the business surrounding gestational surrogacy agreements in India in light of the various studies submitted, it is not up to us, as our colleague Sophie Gravel, J. [44] pointed out, to sanction the conduct of the parties to that contract, which has now been performed. [ 129 ] The Court of Appeal reminds us: [45] [ translation ] The parental project of the appellant and her spouse involved serious legal risks, which are amply described in the sources quoted above.

Moreover, although current and published case law contains no examples of criminal or penal prosecution under the AHRA, the statute is very much in effect and provides for serious sanctions in cases of surrogacy for consideration. Before embarking on the same path as the appellant and her spouse, it is essential that the parties to such a project be fully informed of the risks it entails and their need to comply with the provisions of the AHRA and the YPA.

It seems necessary to point this out because the file in appeal as constituted lets certain doubts linger as to the content and sufficiency of the information provided to the persons concerned by the physicians or ethicists they consulted. That said, in this case, it matters little whether the surrogate mother was or was not remunerated. 79 In an application for an order of placement for adoption, it is the interests of the child that must prevail, not the circumstances of the child's birth.

It is the task of the competent authorities to see to the sanction of illegal acts under the AHRA, not that of the court hearing the application for the order of placement of the child . (Citations omitted.) (Emphasis added.) [ 130 ] Also, even though this agreement could be declared null and in breach of some of our legal provisions, it does not cast doubt on the good faith of the petitioner or the impleaded party, who acted with transparency in a country where they felt that it was allowed while complying with the practices in effect in India. [ 131 ] They did not seek to conceal that they proceeded by surrogacy contract through an assisted procreation (ART) clinic to which they paid a sum of money.

Indeed, the documents in support of their process were filed into evidence. [ 132 ] They never wanted to exclude the surrogate mother from the process.

They simply fulfilled a requirement of that country that was intended to, inter alia , obtain Canadian citizenship for the children. [ 133 ] In fact, the psychosocial report [46] and the testimony of the impleaded party attest to their wish not to hide the truth from their children and to help them should they eventually wish to find their mother. [ 134 ] Moreover, we must bear in mind that the practice is recognized by the Canadian government, which, before authorizing a child born in India as a result of a gestational surrogacy agreement to leave that country, requires that the “Surrogacy Agreement with a copy” and the “Letter from the doctor involved with the Surrogacy programme” be filed. [47] • The consents required [ 135 ] In this case, children’s birth certificates establish filiation only with the father. [ 136 ] The father and the petitioner have been living together for more than three years– specifically, since 2000 – which meets the requirement of

article 555 C.C.Q . [ 137 ] The father’s consent in favour of his spouse was validly given in accordance with articles 547, 548, and 551 C.C.Q. [ 138 ] In the case before us, the names of the female progenitor or gestator do not appear in the child’s birth certificate. [ 139 ] In accordance with

article 555 C.C.Q . and the recent

interpretation by the Court of Appeal [48] in a similar case, the surrogate mother’s consent is not required since her filiation is not recognized in the birth certificate. [ 140 ] In the above case, [49] it was stated that the surrogate mother had freely chosen not to declare her filiation. [ 141 ] Can the same argument be made in this case, in light of the clauses of the surrogacy agreement including, in particular, her contractual waiver of any possibility of declaring her filiation and exercising any rights or obligations in respect of the child. [50] [ 142 ] The petitioner has submitted two sworn statements, one dated October 11, 2012, and the other more recently dated February

20, 2015, in which the surrogate mother declares that she agrees with the petitioner’s actions. [ 143 ] While no objections were raised when the first statement was filed in support of the motion, the Attorney General did object to the second statement being filed during the petitioner’s testimony, alleging that an examination of the surrogate mother to learn the circumstances in which the statement was given would be impossible. [ 144 ] Although the surrogate mother’s consent is not necessary because she is not identified in the child’s birth certificate, the filing of the second statement cannot be authorized since the parties were not given notice that it would be filed.

Exhibit R-14 will therefore not be considered. [ 145 ] The Attorney General also expresses certain reservations regarding the validity of the surrogate mother’s consent to both the agreement and her first sworn statement, maintaining that the consent cannot have been free, voluntary, and informed, and was possibly given because of financial constraints. [ 146 ] It is well-known that, for some years now, reproductive tourism has existed in India, where surrogacy services can be hired through clinics or agencies. [ 147 ] The doubts regarding the validity of the surrogate mother’s consent are partly grounded in speculation.

We also note that it is not up to the Court in an adoption proceeding to sanction the persons who resorted to such a process. [ 148 ] While several of the clauses in the agreement could undoubtedly be declared null and unenforceable, this fact should not create an obstacle to the adoption, as Professor Giroux states: [ translation ] That being said, while it might be justifiable not to recognize the validity of procreation or gestational agreements, it does not appear acceptable to sanction the parties who resorted to them by preventing them from regularizing the situation through adoption.

This position, which we will further discuss in the second part, would be tantamount to making the child bear the burden of the parents’ conduct and violate the child’s rights. 91 Adoption must therefore be considered independently.

The nullity of the agreement between the intended parents and the surrogate mother must not alter the validity of the adoption process. [51] (Citations omitted.) [ 149 ] Whether or not we agree with the wording of the agreement and the rules of practice in effect in India, it is not up to the Court, in the context of an adoption application, to judge this way of doing things. [ 150 ] The Court accepts once again the opinion of Professor Giroux: [ translation ] It is also the option favoured by the CEST in its 2009 opinion on ethics and assisted procreation: 103 [ translation ] For most authors, while it is in the a priori best interests of the child – which are the foundation of the framework for gestational surrogacy –to discourage this practice and not to make it easy to regularize situations, the fact remains that a child was born and that it might be in its a posteriori best interests for the persons who truly desire to assume the role of parent to do so.

Furthermore, does

article 522 C.C.Q . not compel us to follow this path?

Adoption — 09367 says it does: [ translation ] Since the legislature specified in articles 522 and 523 that filiation is proved by the act of birth, which confers the same rights and obligations regardless of the circumstances of birth, the Court does not see why it would distinguish between this child and any other. 104 [52] (Citations omitted.) [ 151 ] The Court also adopts as its own the remarks of Professor Moore, who writes: [ translation ] In the final analysis, the adoption of the child by the intended parent seems in my view to be the least unsatisfying solution.

While it is true that the law must not allow a [ translation ] "dictatorship of the facts", it must clearly identify the objective sought. To refuse to allow the adoption of the child would amount to punishing the child for the sins of the parents. If the adoption is colourable, this is due to the actions of the parents and not those of the children.

The sanction should be limited to the former, and that is why the best interests of the child require that adoption be severed from the nullity of the contract. [53] The best interests of the child [ 152 ] Whether or not the principle of the interest of the child under

article 543 C.C.Q . has been respected must obviously be analyzed under

article 33 C.C.Q .

[ 153 ] In addition, because Canada is a member state of the Convention on the Rights of the Child ,

article 3 of that convention cannot be ignored. [ 154 ] In its analysis, the Court must consider the moral, intellectual, emotional and physical needs of the children at issue here. Their age, health, character, family environment, and other aspects of their situation must also be taken into account. [ 155 ] The Court of Appeal has twice taken a stand on the application of the principle of the best interests of the child in such a case.

It concluded that an order of placement for adoption was the least unsatisfying solution and quite certainly the one that best served the interests of the child. [54] [ 156 ] In both Adoption — 1445 [55] and Adoption — 161 , [56] the Court of Appeal cited the remarks of our colleague Claude Tremblay, J., [57] on analyzing the interest of the child when the child is born to a surrogate mother and his adoption is sought: [ translation ] It is thus a matter of rendering a decision from the point of view of the child and not from that of individuals who, it bears repeating, in good faith and from sheer altruism on the part of the mis en cause C, entered into an agreement for assisted procreation. [ 157 ] From the children’s point of view, there is no doubt that their adoption by the petitioner is in line with their interests. [ 158 ] Both children have lived with their father and the petitioner since their birth and are evolving nicely in their environment.

This is confirmed by the psychosocial report prepared by the Director of Youth Protection. [ 159 ] Counsel for the children is right to state that a refusal to order placement for adoption will have a significant impact on the children, especially in the event of a death or the separation of the impleaded party and the petitioner. [ 160 ] The following remarks by authors Jean Pineau and Marie Pratte are highly relevant here: [ translation ] In France, the case law has prohibited it, opting for the legally logical solution: the law must not permit the performance of a contract that is contrary to public order.

But must pure legal logic alone dictate the answer to this question? A child is born; a couple wished for the birth and was behind the conception; what is more, the biological mother gave birth for the purpose of abandoning the child. What objective should be sought? Should the best interests of the child be protected by legally enshrining an emotional bond? Or should this child, in the name of respect for public order and legal logic, be compelled to live a life torn between its real father, a mother who rejects it, and another person who acts like a second parent but who does not have the status?

In such a situation, is it not better to protect the immediate interests of the child than to respect the public interest? [58] CONCLUSION [ 161 ] The Court finds that the conditions for adopting the children are met. [ 162 ] While none of the undertakings in the surrogacy agreement are enforceable, in the context of an order of placement for adoption, the conditions under

article 543 must prevail over the circumstances of the child’s birth. [ 163 ] As stated by Professor Moore and quoted by the Court of Appeal: [ translation ] Rejecting the consent in a similar case solely because the birth took place in the context of a surrogacy contract amounts to treating the child's adoptive filiation differently because of the situation of the child's birth. It would constitute a return of the “natural child”.

The child of adultery would be legitimate, while that of the surrogate mother would be illegitimate. … Therefore, we should allow the rules of contract to play their preventive role and reaffirm the necessary and complete separation between contracts and filiation, which requires a revision of all of the rules of assisted reproduction in Quebec law. Filiation cannot be the object of a contract any more than it can be a sanction incidental to the nullity of that contract. [59] [ 164 ] The legislature has not followed the Comité du Barreau’s 1988 recommendations [60] to amend the

article on special consent to prohibit such consent in favour of the father’s spouse when the child is born to a surrogate mother. As a result, adoption by special consent is still possible if the other statutory conditions are met. [ 165 ] The debate surrounding the issue of surrogate mothers must not proceed at the expense of the children concerned here. [ 166 ] It is not up to the Court hearing the case of two specific children to rule on this societal issue. As counsel for the children has pointed out, the Court of Quebec, Youth Division, is not the appropriate forum.

This responsibility undoubtedly falls to the legislature. [ 167 ] The remarks of Professor Anne-Marie Savard support this: [61] [ translation ] But since each of the three methods of filiation should in principle be independent and have an exhaustive set of rules, why is adoption even necessary? As we will see in the second part, the provisions on the filiation of children born of assisted procreation currently contain significant limits and obstacles not only related to the subject at hand, but also more general. Everything in the recent Court of

Appeal judgment highlights the urgent need to reform these provisions, in particular by establishing a clear and solid legal foundation for this type of filiation. [ 168 ] As our colleague Sophie Gravel, J. [62] pointed out, it would be advisable for clear rules to be enacted. [ 169 ] The recommendations from the Comité consultatif sur le droit de la famille, [63] presided by Professor Alain Roy, appear to pursue this objective. [ 170 ] Regarding the petitioner’s request for costs to be ordered against the Attorney General, the Court does not agree.

Its intervention was sought by Saintonge, J., before the judgments rendered by the Court of Appeal. The delays are not attributable to the Attorney General. [ 171 ] That said, considering the length of time the children have lived with the petitioner, the Court finds it relevant at this point to reduce the placement period from six to three months. FOR THESE REASONS, THE COURT: [ 172 ] GRANTS the motion; [ 173 ] REDUCES the placement period under

article 566 of the Civil Code of Québec from six months to three months; [ 174 ] ORDERS the placement for adoption of the child X, a girl born on ..., 2012, with the petitioner, A; [ 175 ] CONFERS the exercise of parental authority over the child to the petitioner, A; [ 176 ] MAINTAINS the parental authority of the impleaded party, B, the father of the child, as prescribed by the Civil Code of Québec ; [ 177 ] THE WHOLE, without costs; __________________________________ VIVIANE PRIMEAU, J.C.Q.

Mtre Julie Lavoie For the Petitioner Mtre Charlotte Vanier-Perras For the child Mtre Amélie St-Denis For the Director of Youth Protection Mtre Sylvie Gilbert and Mtre Sophie Primeau For the Attorney General of Quebec [13] United Nations Convention on the Rights of the Child , ratified by Canada in 1992 (Can. T.S. 1992, No. 3) .