2016 QCCQ 8951, 2016 QCCQ 8951

Unofficial English Translation Adoption — 16199 2016 QCCQ 8951 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF ... “Youth Division” N°: 540-43-001056-154 DATE: JULY 19, 2016 ___________________________________________________________________________________________ PRESIDING: THE HONOURABLE PIERRE HAMEL, J.C.Q. ___________________________________________________________________________________________ In the situation of: X Born on … ____________________________________________________________________________________________ JUDGMENT ON AN APPLICATION FOR AN ORDER OF PLACEMENT ____________________________________________________________________________________________ WARNING: Under the Youth Protection Act , it is forbidden to publish or broadcast any information that would allow the identification of a child or the child’s parents.

Every person who contravenes this provision is liable to a fine (s. 11.2.2 and 135 Y.P.A .).

BACKGROUND [ 1 ] The applicant seeks the placement for adoption of X and his twin brother Y (the children). [ 2 ] The applicant is the wife of A, the impleaded party, who fathered the children. [ 3 ] The children were conceived and gestated in the context of a surrogacy agreement (the agreement) entered into in Thailand, in favour of the applicant, B, and her husband, the impleaded party A. [ 4 ] The surrogate mother, C, a Thai national (the surrogate mother), gave birth to the two children in Thailand. [ 5 ] The names of the surrogate mother and the father, A, appear as the parents on the children’s birth certificate. [1] [ 6 ] The children, however, were conceived from genetic material [2] provided by the applicant and the father. [ 7 ] The father signed a special consent to adoption in favour of his wife, the applicant. [3] [ 8 ] Other than the surrogacy agreement, the surrogate mother did not sign a special consent to adoption in the form prescribed by the Civil Code of Québec .

[ 9 ] Because of the unusual nature of these applications for an order of placement, the Court requested that the Attorney General of Quebec and the Secrétariat à l’adoption internationale be impleaded. The Attorney General intervened. The Secrétariat à l’adoption internationale will defer to the Court. [ 10 ] The Attorney General submits that the Court should dismiss the applications for an order of placement. [ 11 ] It argues, first, that there was no special consent to adoption signed by the surrogate mother, which is required under

article 544 and 551 C.C.Q . [ 12 ] Also, it maintains that even if the consent to adoption of the children had been provided by a surrogate mother in Quebec, such an agreement would be contrary to public order. [ 13 ] Finally, it argues that the obligations contractually imposed on the surrogate mother in the context of this surrogacy process are abusive and run contrary to the principles against instrumentalizing a woman’s body and the commodification of children, and more generally, that they violate human dignity. [ 14 ] For her part, the applicant argues that the surrogacy agreement between the parties is valid.

She argues that through this agreement, the surrogate mother waived all her parental rights to the children, as she was officially informed that the applicant and father would have exclusive custody of the children to be born and exercise parental rights over them. Her main argument is that the application is in the best interests of the children. [ 15 ] Abundant documentary evidence was filed. Furthermore, the Attorney General carried out examinations on discovery of the applicant and the father, the impleaded party. These examinations were filed into evidence. The applicant and the father testified.

Counsel for the parties also filed many authorities in support of their arguments. [ 16 ] At the end of the hearing, the Court took the case under advisement.

THE FACTS [ 17 ] The applicant and the father, A (the couple), have been married since April 24, 2004. [4] [ 18 ] They are both domiciled in Quebec and each has two (2) children from previous relationships. [ 19 ] The applicant suffers from a medical condition that prevents her from ever bearing children again. [ 20 ] After several unsuccessful attempts to bear a child, the couple turned to surrogacy to realize their plan to have a child of their own. [ 21 ] Because the process was too expensive in the United States, the couple took steps to deal with an agency in India or Thailand, where the costs were in their opinion much more affordable. [ 22 ] In the end, the couple opted for Thailand because the applicant’s nephew and his spouse live in Bangkok.

Not only were the nephew and his spouse able to help with on-site steps (including confirming the actual existence of the agency and medical clinic), but their familiar presence also reassured the couple just by being nearby.

[ 23 ] In 2011, the couple initiated contact with the Asia Infertility Specialist agency (the agency), which offered an [ translation ] “all- inclusive” assisted procreation service.

The agency’s service included, inter alia , recruiting the surrogate mother, liaising with the All IVF Center clinic (the clinic), performing the gestational surrogacy medical procedures, and taking care of all the administrative and legal aspects relating to the pregnancy. [ 24 ] The applicant filed an agreement titled “Surrogacy agreement” [5] that was signed by the surrogate mother on July 27, 2012, nearly one year before the birth of the children. [ 25 ] This agreement between the surrogate mother, the agency, the representatives of the medical clinic, and the couple provided in particular that the surrogate mother would participate in the insemination process, carry the child of the parents, [6] and comply with any decisions made by the parents and doctors throughout the pregnancy.

She undertook to surrender the children to the parents after the birth. [7] [ 26 ] The agreement also provided that the surrogate mother waived all parental rights over the children and agreed to give custody to the parents. [8] [ 27 ] The couple paid about $27,000 to the agency to carry out the agreement. There are other costs related to flights, lodgings and travel expenses in Thailand, but the couple was unable to establish them with any precision.

The applicant and father maintain that they never paid the surrogate mother any money directly. [ 28 ] In fact, they assert that they did not enter into any contract or agreement with the surrogate mother directly, as the whole was agreed to and arranged through the agency. [ 29 ] The children were conceived from genetic material* provided by the couple. Indeed, before the birth of the children, the couple spent two weeks in Thailand to extract eggs from the applicant and sperm from the father.

During this same trip, the embryos were implanted into the surrogate mother’s uterus. [ 30 ] Thus, the surrogate mother is not the genetic or [ translation ] “biological” mother of the children. [ 31 ] The applicant went to Thailand before the birth of the children and the father followed one week after they were born. [ 32 ] The twins were born on ..., 2013, in City A. [9] [ 33 ] According to the birth certificates issued by Thai authorities, the children are the sons of C, the surrogate mother, and A, the impleaded party. [ 34 ] After the birth, the children were surrendered to the applicant and the father. [ 35 ] The couple then began the steps required to return to Quebec with the children. [ 36 ] During this process, the authorities at the Embassy of Canada to Thailand requested that the surrogacy agreement (exhibit R-2) be translated into Thai (Thai version) and that the surrogate mother once again sign the agreement, this time in translation (exhibit R-3).

According to the father’s testimony, the Canadian embassy provided a list of notaries and translators. [ 37 ] The surrogate mother signed this new agreement through the agency.

[ 38 ] Thus, a second agreement (exhibit R-3) was signed on May 28, 2013, a few weeks after the birth of the children. [ 39 ] This new agreement (exhibit R-3), however, varies in some respects from the one initially signed. I will come back to this. [ 40 ] It took six (6) weeks for the couple to obtain the children’s Canadian passports.

They left Thailand with the children on July 2, 2013. [ 41 ] On June 17, 2015, almost two (2) years after their return to Quebec, the father signed a special consent to adoption in favour of the applicant, in accordance with the provisions of articles 551 and 555 of the Civil Code . [10] [ 42 ] The applications were then filed on June 29, 2015, about two years after the children had come to Quebec. [ 43 ] We note that the applications were not served on the surrogate mother because the applicant did not have her current address.

The only address she has is the one that appears on the children’s birth certificates. [ 44 ] According to the testimony of the applicant and the father, the agency no longer exists and, even after searching, they were unable to contact the person at the agency with whom they had usually dealt, whose name was D. [11] [ 45 ] The only information the couple has about the surrogate mother besides her name is that she was about 28 years old and had already borne a child.

The applicant met the surrogate mother only once, in passing, at the hospital in the days following the birth. [ 46 ] Since their birth, the children have been under the care of the couple, who meet all of their needs. THE LAW [ 47 ] Several legislative provisions are relevant to the discussions in this case. [ 48 ] First, with respect to surrogacy, the Civil Code of Québec states: 541. Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null. [ 49 ]

Section 3 of the Assisted Human Reproduction Act [12] provides the following

definitions: human reproductive material means a sperm, ovum or other human cell or a human gene, and includes a part of any of them. (matériel reproductif humain)* 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. (mère porteuse) [ 50 ]

Section 6 sets out the following principles:

(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 .

(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.

(4) No person shall counsel or induce a female person to become a surrogate mother, or perform any medical procedure to assist a female person to become a surrogate mother, knowing or having reason to believe that the female person is under 21 years of age.

(5) This

section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother . [ 51 ] The Youth Protection Act also contains the following provisions: 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. 135.1.1. No person may cause to enter or contribute towards causing to enter Québec a child domiciled outside Québec with a view to adoption of the child contrary to the procedure for adoption provided in articles 563 and 564 of the Civil Code and in sections 71.7 and 71.8 of this Act. [ 52 ] The rules regarding adoption are set out in articles 543 to 594 of the Civil Code of Québec . Among them, the following provisions apply specifically to this case: 543.

No adoption may take place except in the interest of the child and on the 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. 548. Consent provided for in this

chapter shall be given in writing and before two witnesses. The same rule applies to the withdrawal of consent.

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. 552. If either parent is deceased, is unable to express his or her will or is deprived of parental authority, the consent of the other 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. 557. A person who has given his consent to adoption may withdraw it within 30 days from the date it was given.

The child shall then be returned without formality or delay to the person who has withdrawn his consent. [ 53 ] When the court must decide the situation of a child, it must also consider the following provisions of the 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. [ 54 ] Finally, the court must also consider

article 522 C.C.Q .: All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth . [13] ANALYSIS AND DECISION Consent to adoption [ 55 ] The Civil Code defines the rules of consent to adoption. Consent must be in writing and before two witnesses, in accordance with 548 C.C.Q . [ 56 ] Furthermore, under

article 551 C.C.Q ., consent should be given by both parents. [ 57 ] That was not the case here. Only the father provided consent to the adoption in the form prescribed by the Civil Code . [ 58 ] Additionally, consent can be withdrawn within thirty (30) days from the date it is given, in which case, the child is returned without formality to the person who withdrew consent, pursuant to

article 557 C.C.Q .

[ 59 ] The purpose of these rules is to ensure that the parent signing a consent to adoption is doing so in a free and informed manner. [ 60 ] They aim to ensure that the parent chooses freely and is well informed of the adoption process, its consequences, and the stakes involved. [ 61 ] These rules seek to protect the parent from family or social pressure that may be felt to give the child up for adoption. [ 62 ] In this case, the surrogate mother did not sign a consent to adoption in the form required by

article 548 C.C.Q . [ 63 ] The applicant argues that the agreement signed by the surrogate mother represents her intention and that she signed it knowingly. [ 64 ] We note that the English version (exhibit R-2) was signed before the birth of the children. [ 65 ] Obviously, consent to adoption must be given after the birth of a child. Consent signed before the birth of a child cannot be recognized.

The free and voluntary nature of such consent would be impaired. [ 66 ] It should be specified, however, that the version in the Thai language (exhibit R-3) was signed after the birth of the children, when the authorities at the Canadian embassy asked the couple to provide a version of the agreement translated into Thai before issuing the documents that would allow the children to leave the country. [ 67 ] The Court is nevertheless of the view that the principal purpose of these agreements is surrogacy rather than consent to adoption. [ 68 ] The document appended to the agreement is titled “Consent for surrogacy” and clearly identifies the purpose of the agreement.

The Court finds that a consent to adoption should express only this intent and have adoption as its sole purpose. Otherwise, confusion might arise affecting a person’s capacity to give the child up for adoption and preventing her from giving free and informed consent, not to mention the potential interpretive difficulties. [14] [ 69 ] Consequently, the Court finds that the argument that the surrogacy agreements (Exhibits R-2 and R-3) are a special consent to adoption in accordance with the provisions of the Civil Code of Québec must fail.

The surrogacy agreement [ 70 ] The surrogacy agreement is the only piece of evidence that can reveal the intentions of the surrogate mother. [ 71 ] The evidence, however, has shown that there are three versions of this agreement: • The draft agreement sent to the couple before they went to Thailand, exhibits PG-4 and U-4, unsigned (the same document is filed under two (2) separate exhibit numbers); • The English version signed by all the parties prior to the birth of the children, drafted in English, exhibit R-2; • The version translated into Thai, signed after the birth of the children, presented as text drafted in English with a Thai translation inserted after each paragraph, exhibit R-3;

[ 72 ] The Attorney General is right to argue that there are three different versions of the “Surrogacy agreement”. [15] [ 73 ] Furthermore, according to the Attorney General’s submissions, it is correct to assert that each of these versions contain differences in both form and wording. [ 74 ] First, the version signed by all the parties (exhibit R-2) does not include

chapter 3, which is however contained in the draft agreement sent to the couple before their first trip to Thailand (exhibit PG-4). The signed version includes a

chapter 2 and a

chapter 4, but

chapter 3 is missing. [ 75 ]

Chapter 3, which is included in exhibit PG-4, indicates the amounts that will be paid by the agency to the surrogate mother, which the version signed by the parties (exhibit R-2) does not include. [ 76 ] There are also differences between the English version (exhibit R-2) and the Thai version (exhibit R-3). Specifically, the Thai version includes a

chapter 3, but its content is the same as

chapter 4 of the English version (exhibit R-2). It is as if there was an attempt to restore proper and consecutive numbering. [ 77 ] As a result, the page numbers and numbering are different. [ 78 ] Also, some of the words used differ from one version to the other. [ 79 ] For example, the surrogate mother is designated as “Surrogate” in R-3, and “Carrier” in R-2. [ 80 ] Although the words used are different, they are synonyms so the Court considers that this does not have actual consequences on the content of these various paragraphs or their

interpretation. [ 81 ] Otherwise, the Court notes that the text follows the same order, each of the paragraphs addresses the same subjects, and their meanings are identical. [ 82 ] Moreover, the translated version does not include all the signatures appearing in the English version. The English version (exhibit R-2) is signed by the representatives of the agency and the medical clinic, in addition to the surrogate mother and the couple.

The Thai version, for its part, is signed only by the surrogate mother and the couple. [ 83 ] Although the form may vary in some respects and some of the terms are not the same, a closer look reveals that the obligations of the parties are basically the same in both versions. [ 84 ] Indeed, after analyzing each of the versions in detail, the Court finds that despite the differences noted, the nature of the surrogate mother’s undertakings is, for all intents and purposes, the same. [ 85 ] Additionally, they reveal that the obligations and consequences of signing these agreements for the surrogate mother are clearly indicated in unequivocal terms leaving little room for

interpretation as to the results sought. The surrogate mother’s obligations arising from the “Surrogacy agreement” [ 86 ] First, we point out that in the agreements (exhibits R-2 and R-3), the parties are identified as follows:

• The applicant, B, and A (the impleaded party) are named as the child’s parents in both versions; • The surrogate mother is referred to as the “Carrier” in R-2 and the “Surrogate” in R-3; [ 87 ] The clauses relating to the surrogate mother’s undertakings with respect to the children to be born and her parental rights are found in

chapter 2 of the agreements. [16] [ 88 ] Without reproducing the wording of

chapter 2 of the agreement at length, [17] the Court will summarize the surrogate mother’s undertakings with respect to her parental rights as follows: In clause 2.1, she undertakes to surrender the child to the parents as soon as it is born; In clause 2.2, she specifically waives her parental rights and acknowledges that the parents will exercise these rights from the moment the child is born; In clause 2.3, she undertakes to sign any documents to allow the parents to complete the adoption; In clause 2.4, she acknowledges that the parents may leave the country with the child and undertakes to sign any documents required to this end; In clause 2.5, she undertakes not to contact the child or maintain any communications with the child or intervene in any way whatsoever without the written authorization of the parents. [ 89 ] Even if some of the terms used in the English-language paragraphs found in the translated version [18] (exhibit R-3) are slightly different from those used in the English version (exhibit R-2), it bears repeating that the nature of the undertakings is the same. [ 90 ] The wording used in these agreements is clear and leaves no doubt as to the results sought by the parents or what will become of the children once they are born. [ 91 ] The surrogate mother signed two such documents. [ 92 ] The evidence has shown that the surrogate mother agreed to sign the agreement again after the birth of the children. [ 93 ] Thus, it could be argued that, if the surrogate mother had so intended, she could have refused to sign again and claim that the children be surrendered to her. [ 94 ] In this respect, the court finds that the evidence, as established, supports the argument that the surrogate mother’s real intention was to surrender the children to the couple immediately after their birth, which she did. [ 95 ] Thus, due to the nature of the undertakings set out in the agreements and the fact that the second agreement was signed after the children’s birth, the Court finds that the agreements (R-2 and R-3) represent the real intention of the surrogate mother, especially since this agreement was carried out.

Indeed, the children have been under the care of their father and the applicant since their birth.

[ 96 ] Consequently, exhibit R-3 is a valid statement of the undertakings and intentions of the surrogate mother and more specifically because it was carried out, the Court deems that this document has resulted in legal effects. [ 97 ] Indeed, the evidence, as established, grounds a conclusion that the surrogate mother voluntarily surrendered the children to their father and the applicant in accordance with the agreed upon undertakings and that, consequently, she agreed to waive her parental rights over the children according to the wording in both versions of the agreement.

Arguments regarding public order and fundamental rights raised by the Attorney General [ 98 ] It is settled that under the laws in effect in Quebec, a surrogacy agreement is not enforceable in the event the surrogate mother refuses to comply with the undertaking to surrender the child to the intended parents.

Article 541 C.C.Q . is unequivocal. [ 99 ] That being said, this does not prevent some couples from resorting to surrogacy to have a child. [ 100 ] As Gravel, J. stated in a judgment [19] concerning an order of placement where there was a surrogacy agreement: [ translation ] [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. [ 101 ] In a recent judgment of the Court of Appeal concerning an adoption where the parties had resorted to surrogacy, Morissette, J.A. stated the following: [ translation ] [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. [20] [ 102 ] In fact, many adoptions have been ordered in Quebec following surrogacy agreements. [21] [ 103 ] Accordingly, subject to the rules in the Civil Code of Québec and the Assisted Human Reproduction Act , these practices are permitted. [ 104 ] None of the parties have presented evidence establishing the statutory scheme in effect in Thailand when the children were conceived or born.

The Court therefore did not consider this aspect.

Whatever the case may be, the children are now in Quebec under the care of the applicant and their father. [ 105 ] Furthermore, in international law, there really are no statutory provisions in or specific regulations regarding gestational surrogacy. [ 106 ] Nevertheless, this practice – or rather these practices, since the circumstances vary from one case to the next – raise several questions as to the contractual obligations on surrogate mothers in the context of surrogacy, the sometimes abusive conditions, imposed on mothers who must bring their pregnancies to term (particularly in certain developing countries), not to mention the pressure that may be exerted on them to abandon their children at birth, to name but a few.

[ 107 ] It appears obvious that such practices are likely to violate the principles against instrumentalizing a woman’s body and the commodification of children, and more generally, that they violate human dignity. [ 108 ] The Attorney General’s concerns in this respect are entirely legitimate and relevant. [ 109 ] The Court shares them. [ 110 ] In the view of the Court, however, it is not its role to decide such questions in the context of an application for an order of placement. [ 111 ] The Court feels that it is up to the legislator to intervene on these issues through legislation or international conventions rather than a judge asked to rule on the concrete and very real situation of children who are the subjects of such applications. [ 112 ] There is no reason to put these practices on trial.

It should be noted that, while sometimes questionable, such practices are now quite common and tolerated or even accepted in our society. [ 113 ] It is noteworthy that scientific progress in assisted procreation techniques has made it easier for couples who want but cannot have children to create families, and for homosexual male couples to embody new forms of parenthood. [ 114 ] Obviously, as previously mentioned, the absence of

chapter 3 in the agreements (R-2 and R-3), unlike the initial draft sent to the couple, suggests that the statement that the agency would pay sums of money to the surrogate mother was intentionally removed. It would be extremely naive to think otherwise.

Indeed, it is highly unlikely that a woman would agree to carry a child (or children) for strangers with whom she has no other connection, unless she was receiving some remuneration. [ 115 ] The Court would approach this situation quite differently if the surrogate mother had denounced the terms of the agreement or sought to have the children returned to her, or if the evidence indicated that the couple had acted in bad faith or were attempting to hide relevant information concerning the conception or birth of the children. [ 116 ] That is not the case.

At least, it is not the perception or understanding of the Court, as the evidence has not revealed anything of the sort. [ 117 ] The Court is certainly concerned by the unique nature of the circumstances surrounding the conception and birth of these children, but it is especially concerned with their present situation. [ 118 ] In the judgment cited above, Gravel, J. had the following remarks, which the Court makes its own: [ translation ] [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 parents or rule on the validity of an agreement that has now been performed. [ 119 ] In the other judgment cited above, Morissette, J.A., stated the following on the same issue: [ translation ]

[69] ... 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. [22] [ 120 ] Thus, while the issues raised by the Attorney General are relevant, the Court considers that, in the context of this case, it is not useful or necessary to discuss their merits.

Failure to serve the application [ 121 ] Serving or giving notification of proceedings is one of the fundamental elements of any legal action. Indeed, judgment cannot usually be rendered against a person without that person having the opportunity to challenge the application or submit arguments against it. [ 122 ] In this case, this could not be done. [ 123 ] On June 29, 2015, however, the Maurice Parent, J.C.Q., granted an application for a special method authorizing service by email. [ 124 ] An attempt had been made by special courier through FedEx.

The bailiff’s minutes indicate that the address did not exist. [23] [ 125 ] The applicant provided the address that appears on the children’s birth certificates.

To the couple’s knowledge, it is the only known address for the surrogate mother. [24] [ 126 ] The applicant also maintains that she cannot find the agency, which no longer exists, or its representative, known as D, whose contact information she does not have. [ 127 ] It is noteworthy that the children were born over three years ago. [ 128 ] In the circumstances, it is not surprising that they have lost track of these people. [ 129 ] Although failure to serve remains an exceptional measure, in the circumstances, the Court finds that another attempt to serve would not be useful and that service by public notice is expedient here.

Best interests of the children [ 130 ] It bears repeating that, according to the undisputed evidence adduced, the authorities at the Canadian embassy authorized the father to leave Thailand with the children even though they clearly knew that there was a surrogacy agreement, since they requested its translation. [ 131 ] The evidence also establishes that the condition imposed by Canadian authorities was that the surrogacy agreement be translated into the surrogate mother’s language and that she sign it again. [ 132 ] It is therefore reasonable to assume that, since the requisite documents were issued and the father was authorized to leave Thailand with the two (2) children, the authorities at the Canadian embassy were satisfied.

[ 133 ] These children, whose father is Canadian, are Canadian citizens and are domiciled in Quebec. [ 134 ] Moreover, it is noteworthy that the only parents the children have ever known are the applicant and the father. [ 135 ] Indeed, the evidence establishes that the applicant and the father have acted as parents to the children since their birth and have met all of their needs. [ 136 ] Also, the applicant is the only real mother they have known, and in all likelihood ever will. [ 137 ] The children have no connection to the surrogate mother since they have been in the custody of the applicant and the father since their birth. [ 138 ] They are now three years old. [ 139 ] Furthermore, according to the evidence, the possibility of the children ever being able to find the woman who bore them, if they want to, is minimal, maybe even non-existent. [ 140 ] Furthermore, the fact that the children were conceived from genetic material [25] provided by the applicant and the father is a non-trivial element, even if it does not alone create a right. [ 141 ] While the Civil Code provides that a child’s filiation is established by the act of birth, [26] it is also generally recognized that the child’s so-called biological parents are often those who are in fact recognized as the real father and mother of the child. [ 142 ] One need only observe all the applications claiming or disputing paternity before the courts based on genetic analyses, generally referred to as [ translation ] “DNA evidence”, to see that this is true. [ 143 ] Relying on this type of evidence has become commonplace before courts asked to rule on such matters.

It must also be acknowledged that using this method to discover a child’s parentage and establish (or re-establish) his or her bonds of filiation is increasingly becoming socially acceptable. [ 144 ] In the Court’s view, this does not invalidate filiation established by adoption but instead is the result of the need of individuals (and the law) to know their origins. [ 145 ] The situation of the children concerned in these proceedings is no different.

Their genetic or [ translation ] “biological” origins can essentially be traced back to the applicant and the father. [ 146 ] The fact that the children are not the result of the surrogate mother’s genetic material is certainly a significant element from the children’s point of view. [ 147 ] Moreover, the Court finds that it would not be suitable to refuse to establish a bond of filiation for these children with the person who is in actual fact their real mother and who has acted as such every day since they were born. [ 148 ] The consequences of such a refusal would deny the applicant the exercise of parental rights with regard to the children and, more importantly, would deprive the children of the mother’s parental obligations toward them.

[ 149 ] The bond of filiation imposes obligations on the parents whose children benefit therefrom. [ 150 ] The duties and obligations that arise from parental obligations aim to ensure the fulfillment of the child’s moral, intellectual, emotional and physical needs by significant adults, his or her safety, and his or her full development. [ 151 ] It empowers parents to, inter alia , authorize health care for the child or any other service required or advisable as a result of the child’s state, needs, or condition. [ 152 ] Filiation also ensures the child’s stability and safety if one of the parents dies prematurely or the parents separate. [ 153 ] Mostly, on a psychological level, it provides the child with a sense of security, belonging, and even attachment, which is established in particular through the recognition of the stable and clearly defined bonds of filiation. [ 154 ] The establishment of filiation increases the likelihood of stability and continuity in their lives with the actual parents of these children. [ 155 ] As stated by the Court of Appeal in Adoption — 1445 : [ translation ] [68] Authorizing the adoption is also the solution that best complies with the fundamental principle in

article 522 C.C.Q., whereby all children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth. [ 156 ] When sitting in adoption matters, the Court must consider the outcome of the case from the children’s point of view and their best interests. [ 157 ] Even though the mother did not sign the consent to adoption, the Court takes into consideration the undertakings of the surrogate mother recorded in exhibits R-2 and R-3 and, in particular, the performance of the undertakings through the surrender of the children to their father and the applicant to conclude that it must allow the applicant’s requests. [ 158 ] In the view of the Court, making the orders of placement in this case appears to be the solution that most respects the rights of the children. [ 159 ] Indeed, the Court finds that it is especially important to consider the actual and real interests of these children. [ 160 ] Thus, after having considered the various aspects of their conception, birth, and arrival in Quebec, as well as the current situation of these two children, the Court finds that these applications are in their best interests. [ 161 ] Because of the time the children have spent with the applicant, the Court deems it appropriate to reduce the duration of the order of placement from six to three months. [ 162 ] FOR ALL THESE REASONS, THE TRIBUNAL:

[ 163 ] ALLOWS the application; [ 164 ] ORDERS the placement of the child X, a boy born on ..., 2013, with the applicant with a view to adoption; [ 165 ] CONFERS the exercise of parental authority by the applicant, B, over the child; [ 166 ] MAINTAINS the parental authority of the impleaded party, A, the father of the child, in accordance with the prescriptions of the Civil Code of Québec ; [ 167 ] ACKNOWLEDGES that the child will be known and referred to by the first and last name X , for the duration of the order of placement; [ 168 ] GRANTS the request to reduce the time period for filing an application for adoption from six to three months; [ 169 ] AUTHORIZES the bailiff of the Court of Quebec, Youth Division, to forward a certified copy of this judgment to all the parties; __________________________________ PIERRE HAMEL, J.C.Q.

Hearing: February 1, 2016 Mtre Debra Shapiro Mtre Doreen Brown Counsel for the applicants Mtre Sophie Primeau Counsel for the Attorney General PH/hl