2014 QCCA 1162, 2014 QCCA 1162

Unofficial English Translation Adoption — 1445 2014 QCCA 1162 COURT OF APPEAL CANADA PROVINCE OF QUEBEC REGISTRY OF MONTREAL No.: 500-08-000409-120 (525-43-006477-125) DATE: June 10, 2014 CORAM: THE HONOURABLE YVES-MARIE MORISSETTE, J.A. JACQUES J. LEVESQUE, J.A. MANON SAVARD, J.A.

A APPELLANT – Applicant and B C IMPLEADED PARTY – Impleaded party and ATTORNEY GENERAL OF QUEBEC INTERVENER (as amicus curiae ) And X INTERVENER JUDGMENT [ 1 ] The appellant appeals from a judgment of the Court of Quebec, Youth Division (the Honourable Judge Dominique Wilhelmy), rendered on November 6, 2012, dismissing her "application for an order of placement for adoption". [ 2 ] For the reasons of Morissette, J.A., with which Levesque and Savard, JJ.A. agree, THE COURT : [ 3 ] ALLOWS the appeal; [ 4 ] QUASHES the judgment under appeal; [ 5 ] GRANTS the application for an order of placement for adoption of the child X, born on ...., 2012; [ 6 ] ORDERS the placement of the child X with the applicant A with a view to adoption; [ 7 ] CONFIRMS that the parental authority over the child X is vested in the applicant A and the impleaded party B for the duration of this order; [ 8 ] DECLARES that, in the meantime, the child X will have the family name B and the given name X for the duration of this order; [ 9 ] REDUCES the time period for filing an application for adoption from six to three months as of the date of this judgment; [ 10 ] THE WHOLE without costs; YVES-MARIE MORISSETTE, J.A.

JACQUES J. LEVESQUE, J.A. MANON SAVARD, J.A. Mtre Doreen Brown Mtre Debra Shapiro GREEN, GLAZER NADLER & ASSOC. Mtre Tibor Hollander JEANNIOT & ASSOC.

For the appellant Mtre Sylvie Gilbert Mtre Sophie Primeau Mtre Myriam Anctil Direction générale des affaires juridiques et législatives BERNARD, ROY (Justice Quebec) For the intervener AGQ Mtre Robert Hamel MONTREAL LEGAL AID For the child Date of hearing: September 24, 2013 REASONS OF MORISSETTE, J.A. [ 11 ] The appellant appeals from a judgment of the Court of Quebec, Youth Division, [1] rendered by the Honourable Judge Dominique Wilhelmy, on November 6, 2012, that dismissed her application for an order of placement for adoption of the child X, born in 2012. [ 12 ] For the following reasons, I would allow the appeal and grant the appellant's application.

I. Brief

summary of the facts [ 13 ] With the exception of the nature of certain cash payments made by the appellant to the impleaded party C, the facts in this case are undisputed and were correctly related by the trial judge. I will return to these payments at the appropriate juncture.

For the moment I will simply summarize the substance of the circumstances giving rise to this case. [ 14 ] On the advice of her attending physicians, whom she consulted in a fertility clinic, the appellant A, spouse of the impleaded party B, decided to use the services of an egg donor and a surrogate mother. [2] After finding an egg donor, A spoke to C, who is a friend of the appellant and B.

In 2009, C had given birth to the child Y in identical circumstances, after which Y was adopted by the appellant with C’s consent, becoming A and B’s first child. [3] [ 15 ] As the trial judge noted, [ translation ] "[t]he procreation of X was carried out by implanting an egg fertilized by Mr. [B] in vitro into the body of Ms. [C]". It was agreed that the child would be adopted by the appellant with the consent of C. The birth certificate of the child X indicates that her father is B and her mother is C. Shortly after her birth, X’s care was entrusted to the appellant and B, with whom she resides.

The judge added: [ translation ] "[t]he evidence also reveals that the child's moral, intellectual, emotional and physical needs are met in full by the applicant and the child's father". II. Trial judgment [ 16 ] The trial judge stated that C and the egg donor received remuneration because they complied with the agreement they entered into with the appellant and B. In my opinion, this finding is erroneous for reasons I will outline in my discussion of the merits of the appeal.

As we will see, however, this is not material to the outcome of the appeal. [ 17 ] After setting out the facts and the applicant's submissions, the judge summarized the applicable statutory provisions and synthesized the scholarly commentary and case law on the issue. Since these same excerpts are reproduced below, along with a few others, and since various other relevant sources are considered in my analysis of the merits of the appeal, I shall at this point merely outline the reasons underpinning the trial judge's analysis and conclusion.

I would summarize them as follows: ― A decision on an order of placement for adoption must be made in accordance with the provisions of the law and in the best interests

of the child (and not from the perspective of the persons who have entered into an assisted reproduction agreement). ― The applicant's intentions here are laudable and legitimate.

In practical terms, the child will continue to live with her father and her father's spouse in a situation that is favourable to her well-being. ― Nevertheless, a ruling is necessary on the validity of the special consent for adoption given by the father and mother regarding which a judgment was rendered by Judge Michel Dubois of the Court of Quebec in Adoption – 091 . [4] In a context similar to the one before us, the Court found that consent was vitiated because it [ translation ] "formed part and parcel of an illegal undertaking and was contrary to public order".

According to Dubois J., this consent was a colourable way of giving effect to a contractual agreement that was prohibited by law: [5] In this case, the trial judge adopted the same analysis. ― Moreover, because C received payment when she promised that she would consent to the adoption, she contravened

section 135.1 of the Youth Protection Act . ― As for the father and his spouse (B and the applicant), they took steps that were unlawful and contrary to public order to circumvent a prohibitory provision, and it falls to the competent authorities to apply the relevant criminal provisions if they deem it to be appropriate. ― No other outcome is possible given the current state of the law because the consent of the child's mother is vitiated. Traditional adoption is the lawful process for a couple in the situation of B and the applicant. Therefore, the application was dismissed. III.

Progress of the appeal [ 18 ] On December 5, 2012, the appellant filed her inscription in appeal. This appeal was unique in that the parties to the case, i.e., the appellant and the impleaded parties B and C, all took the same position with respect to the impugned judgment, all of them hoping for it to be quashed for substantially the same reasons. [ 19 ] First scheduled for a fifteen-minute hearing on March 23, 2013, the appeal was first considered in February of 2013 by the panel that was scheduled to hear it in March.

After this consideration, the Court contacted the parties, the Direction de la protection de la jeunesse (Department of Youth Protection, the "DPJ"), and the Attorney General of Quebec, to inquire whether it would be appropriate for the DPJ and the Attorney General to intervene in the case and for an attorney to represent the child X. [ 20 ] On April 4, 2013, during a management conference at the Court held by one of the members of the panel, it was agreed that two additional factums should be entered in the record, one by the Attorney General in its capacity as intervener and the other by counsel mandated by Montreal Legal Aid to represent the child X. [ 21 ] The appeal was then scheduled for a three-hour hearing on September 24, 2013.

IV. Relevant statutory provisions [ 22 ] Like the trial judge, I shall reproduce here the provisions of the Civil Code of Québec and the Youth Protection Ac t [6] that may be relevant to the dispute, but I will also add excerpts from the Assisted Human Reproduction Act . [7] Civil Code of Québec 33. Les décisions concernant l’enfant doivent être prises dans son intérêt et dans le respect de ses droits. Sont pris en considération, outre les besoins moraux, intellectuels, affectifs et physiques de l’enfant, son âge, sa santé, son caractère, son milieu familial et les autres aspects de sa situation. ... 33.

Every decision concerning a child shall be taken in light of the child’s interest 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. Tous les enfants dont la filiation est établie ont les mêmes droits et les mêmes obligations, quelles que soient les circonstances de leur naissance. ... 522. All children whose filiation is established have the same rights and obligations, regardless of their circumstances of birth.

538. Le projet parental avec assistance à la procréation existe dès lors qu'une personne seule ou des conjoints ont décidé, afin d'avoir un enfant, de recourir aux forces génétiques d'une personne qui n'est pas

partie au projet parental. ... 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. Toute convention par laquelle une femme s'engage à procréer ou à porter un enfant pour le compte d'autrui est nulle de nullité absolue. … 541. Any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null. 543.

L'adoption ne peut avoir lieu que dans l'intérêt de l'enfant et aux conditions prévues par la loi. Elle ne peut avoir lieu pour confirmer une filiation déjà établie par le sang. 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. L'enfant mineur ne peut être adopté que si ses père et mère ou tuteur ont consenti à l'adoption ou s'il a été déclaré judiciairement admissible à l'adoption. ... 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. 555. Le consentement à l’adoption peut être général ou spécial. Le consentement spécial ne peut être donné qu’en faveur d’un ascendant de l’enfant, d’un parent en ligne collatérale jusqu’au troisième degré ou du conjoint de cet ascendant ou parent; il peut également être donné en faveur du conjoint du père ou de la mère. Cependant, lorsqu’il s’agit de conjoints de fait, ces derniers doivent cohabiter depuis au moins trois ans. ... 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 cohabitating for at least three years. 567. Une ordonnance de placement ne peut être prononcée s'il ne s'est pas écoulé trente jours depuis qu'un consentement à l'adoption a été donné. 567.

An order of placement may not be granted before the lapse of thirty days after the giving of consent to adoption.

568. Avant de prononcer l'ordonnance de placement, le tribunal s'assure que les conditions de l'adoption ont été remplies et, notamment, que les consentements requis ont été valablement donnés en vue d'une adoption qui a pour effet de rompre le lien préexistant de filiation entre l'enfant et sa famille d'origine. Le tribunal vérifie en outre, lorsque le placement d'un enfant domicilié hors du Québec est fait en vertu d'un accord conclu en application de la

Loi sur la protection de la jeunesse , si la procédure suivie est conforme à l'accord. Lorsque le placement de l'enfant est fait dans le cadre de la Convention sur la protection des enfants et la coopération en matière d'adoption internationale, il vérifie si les conditions qui y sont prévues ont été respectées. Le placement peut, pour des motifs sérieux et si l'intérêt de l'enfant le commande, être ordonné bien que l'adoptant ne se soit pas conformé aux dispositions des articles 563 et 564.

Cependant, la requête doit être accompagnée d'une évaluation psychosociale effectuée par le directeur de la protection de la jeunesse. 568. Before granting an order of placement, the court ascertains that the conditions for adoption have been complied with and, particularly, that the prescribed consents have been validly given for the purposes of an adoption resulting in the dissolution of the pre- existing bond of filiation between the child and the child's family of origin.

Where the placement of a child domiciled outside Québec is made under an agreement entered into by virtue of the Youth Protection Act , the court also verifies that the procedure followed is as provided in the agreement. Where the placement of a child is made within the framework of the Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption, the court verifies that the conditions provided therein have been complied with.

Even if the adopter has not complied with the provisions of articles 563 and 564, the placement may be ordered for serious reasons and if the interest of the child demands it. However, the application shall be accompanied with a psychosocial assessment made by the director of youth protection. Youth Protection Act (" YPA ") 135.1. Que le placement ou l'adoption ait lieu au Québec ou ailleurs et qu'il s'agisse d'un enfant domicilié au Québec ou non, nul ne peut : 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) donner, recevoir, offrir ou accepter de donner ou de recevoir, directement ou indirectement, un paiement ou un avantage, soit pour donner ou obtenir un consentement à l'adoption, soit pour procurer un placement ou contribuer à un placement en vue d'une adoption, soit pour obtenir l'adoption d'un enfant ; (

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) contrairement à la présente loi ou à toute autre disposition législative relative à l'adoption d'un enfant, placer ou contribuer à placer un enfant en vue de son adoption ou contribuer à le faire adopter; (

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) contrairement à la présente loi ou à toute autre disposition législative relative à l'adoption d'un enfant, adopter un enfant. ... (

c) contrary to this Act or to any other legislative provision relating to the adoption of a child, adopt a child. 135.13. Quiconque contrevient à une disposition de l'un des articles 135.1 , 135.1.1 ou 135.1.2 commet une infraction et est passible : 135.13. Every person who contravenes a provision of any of sections 135.1 , 135.1.1 and 135.1.2 is guilty of an offence and is liable

a) d'une amende de 10 000 $ à 100 000 $, s'il s'agit d'une personne physique ou d'une amende de 25 000 $ à 200 000 $, s'il s'agit d'une personne morale, dans le cas d'une contravention à l'un des paragraphes a ou b de l'article 135.1 ou à l'un des articles 135.1.1 ou 135.1.2 ; (

a) to a fine of $10,000 to $100,000 in the case of a natural person or to a fine of $25,000 to $200,000 in the case of a legal person, for a contravention of paragraph a or b of

section 135.1 or a contravention of

section 135.1.1 or 135.1.2;

b) d'une amende de 2 500 $ à 7 000 $, dans le cas d'une contravention au paragraphe c de l'article 135.1. (

b) to a fine of $2,500 to $7,000 for a contravention of paragraph c of

section 135.1. Assisted Human Reproduction Act (" AHRA ") 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. ... 3. Les définitions qui suivent s'appliquent à la présente loi. « mère porteuse » Personne de sexe féminin qui porte un embryon ou un foetus issu d'une technique de procréation assistée et provenant des gènes d'un ou de plusieurs donneurs, avec l'intention de remettre l'enfant à un donneur ou à une autre personne à la naissance. 6.

(1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid. 6.

(1) Il est interdit de rétribuer une personne de sexe féminin pour qu'elle agisse à

titre de mère porteuse, d'offrir de verser la rétribution ou de faire de la publicité pour le versement d'une telle rétribution.

(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.

(2) Il est interdit d'accepter d'être rétribué pour obtenir les services d'une mère porteuse, d'offrir d'obtenir ces services moyennant rétribution ou de faire de la publicité pour offrir d'obtenir de tels 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. […]

(3) Il est interdit de rétribuer une personne pour qu'elle obtienne les services d'une mère porteuse, d'offrir de verser cette rétribution ou de faire de la publicité pour le versement d'une telle rétribution.

(5) This

section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.

(5) Le présent

article ne porte pas atteinte à la validité, en vertu du droit provincial, de toute entente aux termes de laquelle une personne accepte d'être mère porteuse. […] 12.

(1) No person shall, except in accordance with the regulations, […] 12.

(1) Il est interdit, sauf en conformité avec les règlements, de rembourser les frais supportés : (

c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy.

c) par une mère porteuse pour agir à ce titre.

(2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure.

(2) Il est interdit de rembourser les frais visés au paragraphe (1) s'ils ne font pas l'objet d'un reçu.

(3) No person shall reimburse a surrogate mother for a loss of work- related income incurred during her pregnancy, unless (

a) a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus; and (

b) the reimbursement is made in accordance with the regulations. ...

(3) No person shall reimburse a surrogate mother for a loss of work-related income incurred during her pregnancy, unless:

a) un médecin qualifié atteste par écrit que le fait, pour la mère porteuse, de continuer son travail peut constituer un risque pour la santé de celle-ci, de l'embryon ou du foetus;

b) le remboursement est effectué conformément aux règlements.

60. A person who contravenes any of sections 5 to 7 and 9 is guilty of an offence and (

a) is liable, on conviction on indictment, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding ten years, or to both; or (

b) is liable, on

summary conviction, to a fine not exceeding $250,000 or to imprisonment for a term not exceeding four years, or to both. ... 60. Quiconque contrevient à l’un ou l’autre des articles 5 à 7 et 9 commet une infraction et encourt, sur déclaration de culpabilité :

a) par mise en accusation, une amende maximale de 500 000 $ et un emprisonnement maximal de dix ans, ou l'une de ces peines;

b) par procédure

sommaire, une amende maximale de 250 000 $ et un emprisonnement maximal de quatre ans, ou l'une de ces peines. […] 65.

(1) The Governor in Council may make regulations for carrying into effect the purposes and provisions of this Act and, in particular, may make regulations ... (

e) respecting the reimbursement of expenditures for the purposes of subsection 12(1), including providing for the expenditures that may be reimbursed; ( e.1 ) for the purposes of subsection 12(3), respecting the reimbursement of a loss of income; 65.

(1) Le gouverneur en conseil peut prendre des règlements d'application de la présente loi, notamment des règlements : [...]

e) concernant le remboursement de frais pour l’application du paragraphe 12(1), notamment pour prévoir les frais pouvant en faire l’objet; e.1 ) concernant, pour l'application du paragraphe 12(3), l'indemnisation qui y est visée; As we know, this last statute was the subject of an important decision by the Supreme Court of Canada in Reference Re Assisted Human Reproduction Act . [8] The provisions reproduced here are among those that were declared constitutional in that judgment.

Section 12 of the AHRA has yet to come into force. V. Merits of the appeal a. Payments made by the appellant [ 23 ] On this subject, the trial judge made the following observations, which she based on the evidence seen and heard at trial (boldface in the original; in the following excerpt, I have substituted the initials used in the trial judgment with those I have used here to identify the parties): [ translation ] [8] It was on the Internet that [A] found a person advertising her wish to [translation] "donate an egg" as consideration for payment of her expenses. ...

[14] The couple did not sign a written contract with the [ translation ] "surrogate mother" or the [ translation ] "egg donor", but they did enter into formal verbal contracts, which included payment. [16] The father and the applicant indicate that approximately $2,000 was paid to the [ translation ] "egg donor" and $9,000 to the surrogate mother to cover what the witnesses have described as reimbursement for the expenses incurred by the two women concerned. [17] The Court asked that the receipts and/or invoices detailing the payment of these fees be filed. [18] The applicant filed receipts and prescriptions in a bundle as well as a hand-written document containing certain references to amounts of money that were allegedly paid. [19] The medications referred to in the invoices filed were prescribed to the applicant only. [20] The same is true with respect to the receipts issued for massages from the [A] physiotherapy clinic, the receipt issued by psychologist Gabriela Legoretta, and the receipt for laboratory examinations, all of which are made out in [A]'s name. [21] Only two receipts are for services provided to [C]: one for $200 from Dr.

Chantal Lafortune for an ultrasound, and one totalling $900 from Dr. Sophia Ouhilal and Dr. Neal Mahutte for consultations.

As for all the others, they name only [A]. [22] With respect to the fees referred to in the hand-written document, the Court does not take them into account because the document is unsigned and the amounts of money allegedly given to [C] assessed by the appellant in this document are not backed up by any receipts sent to her and/or in her name. [23] This is a long way from the reimbursement of $9,000 to [C] for expenses, which is admitted, accepted and claimed by the father, the applicant and the "surrogate mother". [24] As for the amount of $2,000 paid to the [ translation ] "egg donor", no receipt or invoice has been filed. [25] This observation undermines the credibility of the parties with regard to the payments made to both the [ translation ] "egg donor" and the surrogate mother, and the Court must conclude that $7,900 was paid to [C] and $2,000 to the [ translation ] "egg donor" as remuneration.

This observation, which is very explicit, is rather surprising. I will explain why. [ 24 ] First, I note that

article 541 C.C.Q . declares that "[a]ny agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null", whether such agreement is remunerated or not. With regard to this rule of public order, therefore, remuneration is of no consequence, and it was pointless for the judge to consider it if

article 541 C.C.Q. settled the question. [ 25 ] On the other hand, it is true that under paragraph 135.1 (

a) of the YPA , to "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" constitutes an offence punishable by a heavy fine under

section 135.1.3 of the same statute. But these are penal provisions that should be interpreted accordingly, and the preposition "for" has a causal connotation. Unless we extrapolate from clues that amount to vague presumptions of fact at most, there is nothing in the evidence heard at trial (and especially, nothing in the testimony of the appellant, B or

C) justifying an assumption or, a fortiori , a finding that payment was offered, given or received for giving or obtaining a consent to adoption. In any event, the evidence adduced at trial is scanty. During two brief hearings on September 25 and October 2, 2012, the appellant, the biological father, and the surrogate mother testified. At no time did they describe anything beyond the reimbursement of expenses. [ 26 ] In particular, the testimony of C, the surrogate mother, reveals that she, the appellant and the appellant's spouse have been friends for "approximately 7 years".

She is 33 years old and is the biological mother of two children aged 7 and 11, born of herself and her husband. In addition, as mentioned above, in 2009 she gave birth to Y, a boy, in the same circumstances as those surrounding the birth of X. Y is the first child of the couple A-B. C provided the following answers to some of the questions she was asked at the beginning of her examination: Q. So, this is not your egg. A. No, it is not. Q. This is not your child genetically? A. No, it is not. Q. And do you — what maternal instinct do you have for this baby? A. None.

Q. Do you want to look after [X]? R. No. It cannot be denied that there were payments "throughout", as the appellant testified, totalling "[a]pproximately nine thousand ($9,000)”. But it appears that, as of the first day that they undertook to perform their agreement, the appellant, B, and C all knew that the child to be born would be adopted by the appellant with the consent of B and C. [ 27 ] I would not rule out the possibility of considering the issue from another angle if the evidence revealed the existence of a surrogacy contract including [ translation ] "remuneration", to use the term employed by the trial judge, or "consideration" within the meaning of

section 6 of the AHRA . In such a case, would this be a contravention of not only subsection 6(1) of the AHRA but also paragraph 135.1 (

a) of the YPA ? I find that it is pointless to consider this question because, in my opinion, it cannot be concluded in this case that the appellant and her spouse in fact paid "remuneration" or "consideration" to the egg donor and the surrogate mother. [ 28 ] The case must first be placed in its broader context. In her deposition, the appellant A eloquently described the steps she took and the sometimes very difficult medical treatments she underwent over several years in the hopes of giving birth to a child.

At one point during this period, some of the treatments incurred risks that seriously compromised her health. Because the desired results were never obtained, she decided to opt for what the doctors had presented to her as a last-resort. This approach proved to be successful and, as noted above, in 2009, the appellant adopted a first child, Y, after C consented to carry an egg from a donor that was fertilized by B in vitro . Thus, the situation in 2009 was in every way similar to the one now before us.

According to the information available in the record, the appellant's adoption of this first child provoked no opposition whatsoever. Today, B and A are the child's father and mother. [ 29 ] What happened in 2010? A and B decided to take the same steps, under the same conditions, with the agreement of the surrogate mother who, fortunately, again agreed to participate.

Nothing from their prior experience when they adopted the child Y suggested that new formalities or requirements – evidence of the expenses incurred by this process, for example, which took nearly two years – would now be required for an order of placement for adoption and could even constitute a bar to adoption. [ 30 ] I am aware that, when the appellant and her spouse made this decision in May of 2010, sections 12 and 65 of the AHRA already existed. The Supreme Court of Canada in fact confirmed the constitutional validity of these provisions in December of that year.

It is not surprising, however, that strict compliance with a non-existent regulation (and one that would remain so, as

section 12 of the AHRA has never come into force) was not among the couple's more pressing concerns. For the second time in three years, they began a process which I imagine required a considerable emotional investment on their part. The process began with a first few tries in the fertility clinic, which did not have the hoped-for result. It is entirely comprehensible that their minds were on other things.

It is also understandable that their statement of the expenses incurred throughout this process is approximate – after having consulted doctors, an egg donor and a surrogate mother, it no doubt never occurred to them to hire a bookkeeper to keep track of their expenses as well. [ 31 ] The appellant, her spouse B, and the surrogate mother C have all formally denied on more than one occasion that no consideration or remuneration was paid to C. The appellant and B have also made the same denial about the egg donor. In each case, the witnesses refer to the reimbursement of expenses.

The appellant states that during the entire period at issue, C received "approximately $9,000" and the egg donor "about $2,000" for fees arising from "childcare expenses, nutrition, travel, medication,... in vitro medication, babysitting, clothing". Several attempts were required before they obtained positive results from the medical procedure. We also know, for example, that A and B met with the egg donor "several times" and that she came from [Province A], which suggests that her travel expenses were not negligible.

In short, in my opinion it is impossible on the basis of the testimony to find that the payments to the two persons concerned were anything other than the reimbursement of expenses or payments made in anticipation of actual expenses. [ 32 ] But there is more. As noted above, the couple's handwritten statement of expenses is approximate, and it does not provide a clear picture of all of the costs that were covered.

This statement, however, refers only to the surrogate mother's expenses and not the $2,000 reimbursed to the egg donor. [9] The statement is even accompanied by a certain number of supporting documents (exhibit R-6, filed en liasse ) but it is admitted that they are incomplete because certain payments – for example those to merchants or babysitters – were made directly and in cash. Aside from the types of expenses the appellant referred to in her testimony, the statement also lists various expenses such as ultrasounds, blood tests, massages, parking fees, and housekeeping fees.

A systematic compilation of these fragments of documentary evidence – taking into account (

i) the receipts made out to C or with no name, (ii) receipts made out to C or with no name and the amounts recorded in the handwritten statement, (iii) only the receipts, but including those made out to the appellant, (iv) all of the receipts and the amounts recorded in the handwritten document, or (

v) all of this evidence without categorization – gives the following totals: (i) $1,068 (ii) $5,768 (iii) $3,303 (iv) $8,003 and (v) $8,625. [ 33 ] In light of the preceding, I find that paragraph [25] of the trial judge's reasons, cited above, [10] contains a palpable error. There was no justification in this case to infer from the evidence that the agreement reached by the appellant, her spouse, and C stipulated that C would be remunerated or receive consideration for her role as surrogate mother. In my view, it is important that this error be corrected, given the prohibition in

section 6 of the AHRA , the prohibition in

section 135.1 of the YPA , and the potential consequences of contravening these provisions. (

b) The scope of

article 541 C.C.Q. [ 34 ] On this point, it is appropriate to review the considerations underlying the trial judge's conclusions and, where necessary, to deepen the analysis. 1. State of the issue according to the case law [ 35 ] The judge noted that there are few judgments in adoption cases that deal with [ translation ] "situations in Quebec where the services of a 'surrogate mother' and an 'egg donor' are used" and she is correct.

In her reasons, she referred to two judgments of the Court of Quebec [11] and to one decision of the Court of Appeal. [12] When the trial judge made her ruling in this case, however, the case law that had been published or that was available in the databases contained seven Court of Quebec decisions [13] that are somewhat relevant

and at least one judgment from the same court that was unpublished. One more Court of Quebec judgment was added later. [ 36 ] The first case, Adoption – 07219, rendered in 2007, addressed the issue summarily . [14] Dubois J. ordered the adoption of a child, X, born of a surrogate who was also the biological mother, by the child's biological father and his spouse.

It appears that the spouse in question was also the surrogate mother's sister-in-law. [15] A few months earlier, given the special consent to adoption by the biological parents, the Court of Quebec had ordered placement for adoption in a judgment that that has remained unpublished.

In granting the adoption, the judge made the following observations, which essentially constitute his reasons: [ translation ] [5] Considering that, during the hearing on May 29, 2007, the applicant delivered an open, credible and moving testimony, providing a simple and heartfelt narrative of this purely gratuitous and generous offer on the part of her brother's spouse (of more than 10 years) to proceed with a sperm donation from the child's father and carry the child to term, while keeping the applicant closely involved in every stage of the pregnancy and delivery; [6] Considering the agreement of the surrogate mother’s spouse; [7] Considering that no one has invoked the absolute nullity of an agreement to carry a child for another person (article 541 C.C.Q .) and that, on the contrary, all of the parties have honoured the verbal agreement; [8] Considering that this situation does not depart from the adoption scheme, thereby justifying the intervention of the court to protect the child; [9] Considering that the court is being asked to make a leap of faith and hope that, once the child learns of this arrangement among the adults, he will also see himself as a gift; [10] Considering the demonstrated interests of the child[.] In support of the proposition in paragraph [8] of those reasons, the judge also cited scholarly commentary. [16] [ 37 ] Then followed another judgment, supra , again from Dubois J., from which the trial judge drew heavily.

Adoption — 091 was rendered in January of 2009. [17] An unusual fact of that case was that only the paternal filiation of the child was declared on the birth certificate. [18] The father's spouse was seeking an order of placement so that she could adopt the child. The circumstances of the case may be summarily described as follows. After trying for seven years and using various medical techniques to conceive a child, the father's spouse (the applicant for adoption) came to an agreement with the father to find a surrogate mother who would be artificially inseminated with his sperm.

Thus, a [ translation ] "verbal contractual agreement entered into in due form" was entered into with a surrogate mother, providing for a payment of $20,000 to the surrogate mother in compensation for her [ translation ] "inconvenience and expenses". [19] The amount in question was paid to the surrogate mother who, two days after the birth, signed a special consent to adoption, explicitly agreeing that her child be entrusted to the father's care. And accordingly, upon her release from the hospital, the child lived with the father and his spouse.

As noted above, Dubois J. rejected the application for an order of placement for the adoption of the child. [ 38 ] The judgment in that case relies on extensive notes citing various commentary and case law, some of which will be discussed later on. The 2009 judgment includes much longer reasons than those in the 2007 judgment and, adopting a position supported by some of the relevant commentary, ultimately rejects the application for an order.

It appears, however, that one factor above all was decisive in the judge's analysis: the appearance of evasion of the law which, in the judge's opinion, emerged from the facts of the case. On the advice of their attorney, [20] the applicant and her spouse had agreed with the child's biological mother that her name would not appear on the child's birth certificate. By acting in this way, they were simply complying with a (perhaps inexpert) suggestion based on an

article of scholarly commentary, which was drafted as follows: [21] [ translation ] "If the surrogate mother does not claim it within thirty days, the filiation of the child will be established in relation to the man of the applicant couple alone; he therefore need only consent to the adoption for his spouse to be able to establish her maternity with regard to the child born of the surrogacy contract".

Described by the judge as a [ translation ] "convoluted parental project carefully planned", [22] the manner of proceeding that the applicant and her spouse chose provoked a harsh response from the judge (boldface in original): [ translation ] [62] In the particular factual context of this case, it must be concluded that, from the very start , the parental project devised by the applicant and the father of the child inevitably involved the deliberate creation of a situation in which, in order to satisfy their desire for a child, the biological mother would first abandon her baby and then the father would consent to its adoption (Exhibit R-2). [63] All the steps chronologically following the decision to recruit a surrogate mother, in contempt of existing laws and in the margins of the law, logically gave rise to the ensuing events. [64] It is clear that the applicant sets great store in the de facto situation.

Since the child has already been born, the cardinal principle of the best interests of the flesh and blood child should not only move the Court but should be the only criterion for determining the decision to be rendered. [65] The applicant hopes that the Court will go along with her notion of a “right to a child” whose interests, once born, are no longer in any doubt, since she is already taking care of it and wishes to continue to do so. [66] Thus, all the steps conceived and carried out illegally would finally lead to a legal result, thanks to the convenient use of the all- purpose criterion of the best interests of the child.

This criterion would clean whiter than white, erasing everything that has been done before.

Such a combination of circumstances (i.e., steps taken resulting in an anomaly on the birth certificate because the name of the biological mother does not appear) seems to have been interpreted in some subsequent cases [23] as determinative, since those cases distinguish themselves from Adoption — 091 by referring to this aspect of the case explicitly. [ 39 ] The question, again in the form of an application for an order of placement for adoption, came before Claude Tremblay J. of the Court of Quebec, who, on June 29, 2009, issued a ruling in Adoption — 09185 . [24] The facts of that case are the most closely analogous with those of the appeal before us.

Unable to conceive despite two medically assisted attempts that exposed the applicant A to a very serious health risk, [25] she and her spouse developed a surrogacy project in which C, an aunt by marriage, agreed to act as the surrogate mother. The judge explained the terms of the agreement as follows: [26] [ translation ] "The eggs from A and the sperm from B were joined in vitro , and embryos were placed in the uterus of C, who was impregnated and gave birth to X and his twin brother Y by cesarean

section on …”. C was not paid or compensated for any of the expenses incurred, despite a difficult pregnancy requiring several weeks of hospitalization. The formalities relating to the declaration of birth identified C as the [ translation ] "biological mother" and B as the [ translation ] "biological father".

The judge made the following remarks on this subject: [7] ....this form does not foresee the possibility of entering the name of the “genetic mother” – the woman who provided the egg, or eggs - unless the name of the “genetic mother” is entered in the “biological mother” section, which would not be without merit. Indeed, if we have no trouble accepting the idea that the person whose sperm fertilized the egg is entered as “father” – a “biological father” of sorts – why would it not be acceptable for the person whose egg was fertilized to be entered as mother or “biological mother”?

The “genetic mother” is certainly more the “biological mother” than is the “surrogate mother”. But these distinctions are not recognized, or not fully recognized, by the Civil Code of Québec . Further on in his reasons, he added that, if

an act of birth had been requested for the child X, it would have identified C as the child's mother. [ 40 ] After noting the obvious good faith of all of the parties (who [ translation ] "at no time... [attempted] to break any law"), the judge carried out a legal analysis of the issue before him, from which I will have occasion to quote further on in these reasons.

In his opinion, however, Dubois J.'s judgment in Adoption – 091 was based on facts that were clearly different and distinguished that case from the one before him: [ translation ] In closing, it should be said that the facts of this case differ greatly from those considered by the Court of Quebec, Youth Division, in a decision rendered recently that also involved a surrogate mother [2009 QCCQ 628]. In that case, the means chosen to attempt to have maternity recognized also consisted in filing an application for an order of placement for adoption.

As seen in paragraphs 17 and 23, means other than adoption are sometimes available to achieve the same goal. That being the case, Tremblay J. granted the applicant A's application. [ 41 ] The question was considered again a few months later and decided on August 4, 2009, in Adoption – 09558 , [27] although this time from a slightly different perspective. Two same-sex spouses who hoped to become parents had approached a California agency to engage the services of a surrogate mother. It was not disputed that California law permits remunerated surrogacy contracts.

Under their agreement, all of the surrogate mother's medical and other expenses were paid by the spouses, who also made payments as remuneration. When her pregnancy came to term, the surrogate mother travelled to Quebec to give birth. The spouses presented an application for an order of placement for the adoption of the child, supported by the surrogate mother's consent.

Aware of the judgment that his colleague Dubois J. had rendered, Louis Grégoire J. dealt with the issue as follows: [ translation ] Upon analysis, the Court finds that several facts distinguish this case from that brought before my colleague, the Honourable Judge Dubois. [11] First, the entire contractual aspect of the situation was carried out in California. These steps were completed publicly and entirely legally. Uncontradicted evidence to this effect has been adduced before the undersigned. It consists of a legal opinion and a judgment of the Superior Court of the state of California.

The mother came to City A solely to give birth to the child, consent to the adoption, and receive service of the application now being considered. [12] Also, and this fact may be the most important of all, this child's mother appears on her Quebec birth certificate. Nothing was done to conceal, dissimulate or camouflage this person's identity. Quite the contrary. She came to Quebec to give birth and duly signed the civil status registry. Her name appears on the birth certificate adduced. [13] With respect for the contrary opinion, the Court intends to grant the applicant's application.

And further on, in conclusion, he added (footnotes omitted): [ translation ] [23] 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. [ 42 ] A fifth relevant judgment, this one unpublished, was rendered by Dominique Wilhelmy J. on January 7, 2010. [28] The facts of that case can be summarized in a few lines. An egg from the appellant A, fertilized by her spouse B, was implanted in the body of the

surrogate mother C, a nurse and colleague of B, who himself was a physician in the same hospital.

According to the testimony, an amount assessed between $10,000 and $15,000 had been paid to C to reimburse her expenses and compensate her for the inconveniences she suffered. [29] The child's mother and father were recorded on the birth certificate as B and C, both of whom gave special consent to the adoption. [ 43 ] The judge quoted the remarks of Dubois, [30] Tremblay, and Grégoire JJ., supra , at length, and referred to a few articles of scholarly commentary. [31] She then analyzed the merits of the case in light of her review of the applicable law, and set out the foundation of her judgment as follows (boldface in the original, footnotes omitted): [ translation ] [48] The order of placement for adoption is a decision that must be rendered from the child's point [of view], taking various precautions and taking into account both the provisions of the Act and the interests of the child, not from the point of view of the persons who entered into an assisted reproduction agreement. [49] The best interests of the child are an important criterion, but respect for the rules is equally critical. [50] The Court is of the view that it is appropriate to draw a distinction when it comes to assisted reproduction with a [ translation ] "surrogate mother" who agrees to carry another woman's fertilized egg. [51] Mtre Alain Roy ( supra ) discusses situations where the fertilized egg is from the "surrogate mother", and it is the Court's view that, in such cases , adoption would deprive children of their right to know the persons who created them and would run contrary to their interests. [52] Thus, in the same circumstances, and where the contract is equally unlawful, if the fertilized egg was that of the "surrogate mother", this application would be dismissed without hesitation in view of the best interests of the child. [53] In this case, however, the egg fertilized by the father's sperm and implanted in the uterus of the "surrogate mother" and leading to the birth of the child that is the subject of this application is from the applicant. [54] The applicant and her spouse, the child's father, are the progenitors.

Since the child's birth, they have had custody of him and provided the care, attention and affection to which he is entitled [55] The best interests of the child require that he may have filiation with his progenitors. [56] A decision in favour of placing the child for adoption does not have the effect of depriving the child of his bond with C, who is the parent giving her consent, since she does not wish to maintain such bonds and has no genetic link with him. [57] The interests of the child in being adopted by the applicant in this case are real, and the Court must decide in favour of the conditions that are most conducive to his development. [58] This criterion being established, what should be decided with regard to the provisions of the Act in light of the second criterion of

article 543 of the Civil Code of Québec ? [59] Like the Honourable Judge Claude Tremblay, the undersigned finds that the courts must be creative in their consideration of the fundamental values of Quebec society, and this case requires this type of

interpretation of the provisions of the Act. [60] The special consent given by the mother on the birth certificate, i.e., C., has become the instrument by which the father and his spouse have circumvented the existing legislative prohibitions in this province and this country, and taken

part in a process that is unlawful and contrary to public order, seeking in a roundabout way to produce legal consequences from something that is prohibited by the Act, and the competent authorities may apply the relevant penal provisions if they deem it appropriate to do so. [61] But the Court need not rule on this issue. [62] The application brought before the Court seeks to allow the child to benefit from his true maternal filiation , which is consistent with the uninterrupted possession of status.

The application for the order of placement was therefore granted. [ 44 ] Faced with circumstances similar to those in the cases cited above in two applications for orders of placement, on October 1, 2010, Françoise Garneau-Fournier J. rendered two judgments that are identical in content . [32] In them, she granted applications in respect of twins. The applicant A was the spouse of the biological father B. Two of her eggs, fertilized by B, were carried by C, a long- time friend of the couple, who gave birth to the twins in question. No money was paid to C.

The biological father B and the surrogate mother C, whose name is on the children's birth certificates, consented to the adoption in accordance with the requirements of the Civil Code . Garneau-Fournier J. first distinguished the situation from that in Adoption – 091 , as follows: [ translation ] [15] … in this case, the surrogate mother is registered on the child's act of birth and has signed a special consent to adoption by the applicant, the father's spouse, as has the father.

Articles 522, 523 and 538.1 state that the filiation of a child, even one born of assisted reproduction, is established in the birth certificate. Moreover, the Code adds "regardless of their circumstances of birth". She then quoted a passage from Tremblay J., to which I will later return and which circumscribes the scope of

article 541 C.C.Q. Then, returning to Wilhelmy J.'s judgment, she quoted paragraphs [48] to [56] thereof, which are reproduced above in paragraph [43] of this judgment. Finally, she concluded her reasons as follows:

[ translation ] [19] Thus, as in the two situations referred to above, the legal mother registered on the birth certificate of the child at issue gave her special consent to the adoption by the applicant, the father's spouse, of her child upon its birth. The child's father also gave his special consent, and nothing in the evidence has demonstrated that their consents are vitiated or invalid. Moreover, the child's mother has appeared before us to confirm her consent and the context of the parental project that resulted in the birth of the child and his twin.

In addition, medical evidence has confirmed the process at issue and the follow up. [20] Furthermore, even if this gratuitous undertaking constitutes an agreement that is absolutely null, the Court finds that this proceeding does not seek performance of the agreement.

As in the previous case, the application was granted. [ 45 ] On December 13, 2010, it was Denyse Leduc J.'s turn to grant an application for an order of placement in Adoption – 10489 , another similar case . [33] The applicant A and her spouse, the biological father B, had agreed with C that C would carry A's egg, which was fertilized in vitro by B's sperm, a process that required twenty-one months of procedures and treatments, followed by nine months of pregnancy.

The judge stated, [34] [ translation ] "The applicant and her spouse assumed all of the medical, transportation, shelter, and subsistence costs incurred by Ms. C's travel. The costs increased after C's family moved from the [X] region to city [Y]". The child lived with A and B after its birth, and C, the mother registered on the birth certificate, gave her special consent to the adoption.

The judge continued, [35] [ translation ] "The current objective is to give the child her true maternal filiation, that is, the one she possesses because of the biological connection and also resulting from uninterrupted possession of status since her birth”.

After citing Adoption — 09185 [36] and Adoption — 07219 , [37] Leduc J. ordered the child's placement for adoption. [ 46 ] Finally, on January 22, 2013, in Adoption – 1342 , [38] Johanne Denis J. ordered a placement for adoption in circumstances that were quite similar to the ones in the previous case: the applicant A, the biological father’s spouse, whose egg was fertilized in vitro by her spouse's sperm, wished to adopt the child delivered by the surrogate mother, C, the applicant A's sister-in-law, who had consented to the adoption.

The reasons of Denis J. do not invoke the case law referred to here but rely instead on oft-cited commentary by Professor Michelle Giroux. [39] [ 47 ] As is apparent, in most of these cases, the intended mother, or future adoptive mother, is also the child's genetic mother or progenitor, and the agreement with the surrogate mother is a gestational agreement [40] rather than a reproduction agreement.

It may be distinguished from a few cases, such as Adoption – 091 , [41] where the surrogate mother's egg was artificially inseminated with the sperm of the applicant’s spouse, or the present case, which involves an egg donated by a third party. 2. State of the issue according to scholarly commentary [ 48 ] Scholarly commentators in Quebec have also considered the scope of

article 541 C.C.Q. , and the authors are not unanimous on the issue. I do not believe that it is necessary in this case to carry out an exhaustive review of what has been said on the subject – it is sufficient to sketch out the main positions emerging from these academic publications, some of which pre-date all of the cases cited above. Some of them, such as Adoption – 091 , [42] do not support adoption upon special consent, while others, such as Adoption – 09185 , [43] do. [ 49 ] Professor Alain Roy, in the second edition of his book on adoption, [44] critically examines the three judgments considered above.

He quotes the following excerpt from Adoption – 091 , [45] thereby conferring on that decision a greater scope than it is given by several subsequent judgments, and one that perhaps exceeds what may be concluded from reading Adoption – 091 and Adoption – 07219 together: [46] [ translation ] [57] Unless one chooses to wear blinders, however, it is not possible to dissociate the question of the validity of this consent (Exhibit R- 2) from the preceding steps concocted by this couple in carrying out their parental project.

The consent was vitiated because it formed part and parcel of an illegal undertaking and was contrary to public order. This is not a matter of procedural law, but of substantive law. As Professor Roy is in agreement with this statement, he quite naturally criticizes the judgments in Adoption – 09185 [47] and Adoption – 09558 . [48] He states the following: [49] [ translation ] 39. Surrogate mother – ... In the current state of Quebec law, the decisions of Tremblay J. and Grégoire J. appear to be ill-founded.

No matter how much empathy is inspired by a child who is thus deprived of filiation, the legislature has decided to declare that all surrogate mother contracts are absolutely null, regardless of where the eggs come from.

Article 541 C.C.Q . is clear: both agreements in which a woman undertakes to procreate a child for another person and agreements that assign a woman only the responsibility of carrying the child are absolutely null. The law of the domicile of the surrogate mother does not appear to be relevant either. Given the circumstances, the law governing the establishment of the filiation of the child remains Quebec law. That being said, it appears difficult to admit that the rule of

article 541 C.C.Q. may be circumvented by way of adoption, which, it is worth pointing out, is a rule based on weighty public order considerations. As Professor Giroux writes, [ translation ] "It is the commercialization of the practice and the values at play – the protection of women from exploitation, the refusal to commodify children, and more generally, the public interest of society – that compel the lawmakers to intervene". Nor can the principle of the best interests of the child be used to circumvent the legislative prohibition and justify the adoption.

Adoption, we recall, may take place only in the best interests of the child and under the conditions provided by law. With respect for the contrary opinion, the

interpretation whereby such conditions refer only to the material and procedural rules contained in the

chapter on adoption cannot be accepted. In our view, they refer

instead to all of the provisions through which the legislature expresses its attachment to values that it believes are justified by the interests of children in general. In this sense, we cannot believe that an adoption project based on a combination of facts that the law does not recognize for the above-stated reasons does not comply with the conditions provided by law and therefore cannot be allowed by the Court. I note that the excerpt from Professor Giroux's text that Professor Roy cites here is drawn from an

article [50] published prior to a more recent one [51] by Professor Giroux in which he states his opinion that the public order considerations that Professor Roy lists would not be a bar to the adoption of a child born of a surrogate mother. [ 50 ] Professor Roy's point of view is shared, with certain qualifications, by Michel Tétrault, who, after quoting

article 541 C.C.Q ., writes: [52] [ translation ] 9.9 The surrogate mother ... We are in a position to observe that the current legislation sets out two restrictions concerning assisted reproduction: reproductive contracts and gestational contracts. The Civil Code prohibits the use of the body in the case of women: surrogate mothers (article 541 C.C.Q .); resorting to male progenitors for the purpose of procreation through sexual relations is permitted.

Would adoption by special consent from the surrogate mother and biological parent circumvent this obstacle and establish filiation in favour of the biological parent's spouse despite the illegality of the process (article 541 C.C.Q .)? We do not believe so, if this process involves some form of compensation or prior agreement to relinquish the child; one should not be permitted to do indirectly that which cannot be done directly.

The commentary alludes to the frequently exploitative nature of this type of contract, stating that women who are more willing to become surrogate mothers are economically vulnerable and that the risks and obligations assumed by the respective parties are disproportionate, not to mention the fact that the woman's dignity is impaired by reinforcing the perception that she is nothing more than a vessel whose purpose is to carry a child. [ 51 ] In her abundantly sourced 2005 comparative law essay based on her doctoral thesis, Professor Carmen Lavallée was prescient as she outlined the forthcoming debate: [53] 513.

Although the Quebec courts have not dealt with the issue, the law provides that surrogacy contracts are without effect. In 1988, the Comité du Barreau sur les nouvelles technologies de reproduction (Quebec Bar committee on new reproductive technologies) studied the issue of the legitimacy of surrogacy contracts. First, the Committee stated that it was in favour of condemning this type of contract on both ethical and legal grounds. The Committee recommended that the law prohibit any effect of a contract considered contrary to public order, something that is now recognized under

article 541 of the Civil Code . The members of the Committee went even further, proposing that no preferential right to adopt be granted to the spouse of the child’s biological father, as a way of discouraging infertile couples from using the services of a surrogate mother. The Quebec legislature did not follow this suggestion. But this does not mean that adoption must therefore be ordered. Adoption is a question concerned with both appropriateness and lawfulness, and may be ordered only on the conditions provided by law and in the best interests of the child.

The Quebec courts would position themselves in the area of the best interests of the child. Some believe that adoption should be ordered because it is in the best interests of the child, distinguishing the a priori interests of the child – that is, those existing before its conception and birth – which require a condemnation of surrogate motherhood, and the a posteriori interests of the child – those that exist once it is born – which presuppose the ordering of an adoption once the other legal conditions are met.

A priori adoption is in fact the abstract interests of the child that justify the prohibition against surrogacy. The a posteriori interests can only be the child's actual interests. It is necessary, however, to recall that the child's actual interests are a matter of

interpretation and that as such they may not contradict a rule of law. And indeed, the essence of the debate apparent in the current case law revolves around the considerations identified by Professor Lavallée. [ 52 ] On the other hand, some authors support – although sometimes with reservations – the solution advocated in Adoption – 09185 .

This is the type of solution that was expected by Professor Jean Pineau and Professor Marie Pratte (the latter currently a judge of the Court of Quebec) in their treatise. [54] They wrote: [ translation ] A contract whereby a woman undertakes to procreate or carry a child for another person is therefore absolutely null; if a party refuses to fulfil the contract voluntarily, no court may compel that person to fulfil it.

Because surrogacy agreements are not prohibited under the Assisted Human Reproduction Act , however, it is likely that some will take the risk of engaging the services of a surrogate mother, even though such contracts are absolutely null under the Civil Code of Québec . The question therefore arises as to the filiation of children born of these types of arrangements, and the answer may be found in the general principles of filiation by blood. The child's mother is the woman who gave birth to it and who is both the female progenitor and the gestator or simply the gestator.

Depending on the circumstances of the case, the father is the man designated by the act of birth, by possession of status, or by presumption of paternity. Thus, he may be the surrogate mother's spouse or, if the contract was voluntarily performed, the male progenitor who entered into a contract with her and to whom the child may be given. In such a situation, if the male progenitor has a spouse, it must be considered whether it is possible for his spouse to legally become the child's second parent.

Certainly, since the child already has a mother who, as noted, is the surrogate mother, she must consent to the adoption of her child by the person who wishes to take her place. Adoption is the only way for the father's spouse to acquire the status of parent; can it be used? In France, the case law has prohibited it, opting for the legally logical solution: the law must not permit the execution of a contract that is contrary to public order. But should the answer to this question be dictated by purely legal logic alone?

A child is born; a couple wished for its birth and was behind its conception; what is more, its biological mother gave birth to it with the objective of abandoning it. What objective should be sought? Should the interests of the child be protected by permitting the legal enshrinement of 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 that 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? In our view, recourse to adoption by the father's spouse

should be tolerated, so long, of course, as the surrogate mother has consented. Can she give special consent? Obviously,

article 555 C.C.Q. does not specifically provide for this possibility, and it certainly was not drafted to settle such a situation. Nevertheless, it permits special consent to be given in favour of the spouse of the child’s mother or father. Therefore, under the letter of the law, if paternity is established in favour of the man who hopes to keep the child, the surrogate mother may give special consent in favour of the father's spouse. It seems to us that this

interpretation should be preferred in the best interests of the child, even if it favours a circumvention of the law. Considering how far it had already gone, the legislature could have avoided this perversion of the law by deciding to repeal

article 541 C.C.Q. Was it timidity (which we no longer expect?) Or was it a lack of consistency? [ 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] [ 54 ] Here are some of Professor Moore's explanations: [59] [ translation ] ... the nullity of surrogacy contracts must be upheld.

Nullity has the effect of completely eliminating the binding nature of the contract. In so doing, it allows significant uncertainties as to the effectiveness of the agreement to exist, thus dissuading the parties. By giving birth, the surrogate becomes the child's mother. She may then refuse to perform the contract and keep the child without exposing herself to sanctions. Conversely, the intended parents, or at least the intended mother, may never be compelled to comply with their undertaking and to recognize the child or consent to its adoption.

Thus, nullity plays a preventive role, not merely by refusing to condone the practice but by discouraging it to protect what have been called the a priori interests of the child. But the effect of the provision must end there, and according to Professor Moore, several arguments based on legal logic and legal policy also point in this direction: [60] [ 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 nullilty of the contract.

But not only is this severance consistent with the best interests of the child, which is a pragmatic argument based on judicial policy, it is also consistent with judicial logic. The effect of the nullity of the contract is the neutralization of its performance, and the elimination of its binding force.

In this sense, the nullity of the contract operates normally here: the intended parents may not seek sanction for the failure of the surrogate mother to hand over the child or perform any other contractual obligation, any more than the surrogate mother may compel the intended parents to take on a parental relationship vis-à-vis the child. Thus, the law does not condone the prior determination of the child's filiation, which is the purpose of prohibiting such a contract. The issue of the child’s adoption at birth is separate.

On this point, the rules of filiation must apply in the same way as they would in the absence of any such contract. That is why, despite the existence of such a contract, it is generally admitted that when the intended father is the biological father, he may establish his parental relationship under the traditional rules of filiation. This is generally accepted as a result of the severance of the contract from filiation. Refusing paternity would amount to associating the two, causing the nullity to have effect on the law of filiation. The law refuses to allow such an association in respect of paternity.

The same should be the case in respect of maternity, when adoption is sought. .... there is no doubt that, under the case law, a mother's consent to adoption by the biological father's spouse of the child born of an adulterous relationship is allowed. 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. Finally and ultimately, the refusal of the child's adoption after its birth is insufficient to manage the child's situation. What happens to the child if the adoption is refused? In a first scenario, the child is not given to the intended parents and the surrogate mother puts him or her up for adoption. In such a case, the logic whereby the intended parents cannot adopt the child means that the child may be adopted by anyone except the intended parents.

Or, more generally, the child is given to his or her biological father. A certain amount of time after abandonment by the surrogate mother, a request may be brought to have her deprived of her parental authority. In such a case, the child becomes eligible for adoption. Can the intended parent, spouse of the biological father with whom the child has always lived and with whom a social parental relationship has developed, adopt the child? Not only would approving such an adoption be inconsistent with the initial refusal, it would also indicate the ineffectiveness thereof.

Conversely, refusal would be a kind of judicial overkill, in that the person who would be best placed to ensure the best interests of the child would also be the only one who could not adopt the child. The argument may not be orthodox, but in our opinion it is nevertheless decisive. 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. The solution is not perfect, but it is pragmatic, and it has the advantage of uniting the public interest and individual interests in an optimal fashion. [ 55 ] These unusually long quotations highlight the importance of the judicial issues, or quite simply the human issues at stake in this appeal and the degree to which the commentary and the case law is divided on the matter.

(3) Synthesis and application for the purposes of the appeal [ 56 ] Many controversies have been raised by the issue at the heart of this appeal, and even more by the relatively recent phenomenon of surrogacy, in all its various aspects. The abundant and very useful documentation from both here and abroad that has been put at the Court’s disposal by the amicus curiae illustrates the situation in great detail.

Of course, this case requires us to do more than merely catalogue the opinions that have been expressed here and elsewhere on both sides of the question; rather, it compels us to weigh the pros and cons in the specific context of the positive law currently in force in Quebec. This is a delicate issue regarding which opinions may reasonably diverge, but one which must now be decided in light of what appears to be the legislative intent underlying

article 541 C.C.Q. [ 57 ] The commentary of the Minister of Justice in the preparatory work for the enactment of the Civil Code of Québec provides no enlightenment in this respect. At most, it indicates that the provision is new law. [61] This is undeniably the case, and it is so because the phenomenon of surrogacy as it exists today was recent at the time of the codification. We therefore may not identify

article 541 C.C.Q. as part of a long tradition of

interpretation during which the notions at issue have been imbued with a meaning that, over time, has come to define their normative weight. The question, however, seems clear: in short, referring here to the nullity of certain agreements, was

article 541 C.C.Q. really intended to prevent the adoption of a child born of an agreement that is absolutely null under that very provision? The answer requires some nuance. [ 58 ] A first element which, in my view, strongly suggests that this was the case, has already been raised by Professor Lavallée in the excerpt quoted in paragraph [51], above.

The possibility of connecting contractual nullity to filiation was explicitly recommended in 1988 in the report of the Barreau du Québec committee on new reproductive technologies. [62] A majority of the members of the Committee had found that [ translation ] "surrogacy must be roundly condemned in ethical and legal terms in all cases". [63] A simple and clear legislative solution was therefore required.

In its twenty-first recommendation, the Committee proposed: [ translation ] That no preferential right to adopt be granted to the spouse of the biological father when the child is born of a surrogacy agreement and that, to this end,

article 607 C.C.Q. be amended to permit special consent in favour of the child's father or mother and to prohibit it when the child is born of a surrogate mother. At the time,

article 607, [64] which corresponds to what is now

article 555 C.C.Q ., was never amended the way the Committee proposed. Although some of the comments that the Minister of Justice made during parliamentary committee hearings as part of the preparatory work may appear ambiguous, [65] the possibility (however unusual, granted) of an adoption by a relative in the collateral line is mentioned later on in the same debate, [66] and this source does not provide a clear indication of the impact that

article 541 C.C.Q. should or should not have on a possible filiation by adoption. In my view, therefore, it seems appropriate to find that the prolonged silence of the legislature is deliberate and increasingly significant. [ 59 ] The hostility toward surrogacy manifested by the Comité du Barreau du Québec in 1988 seems in my view to have been caused (at least in part) by the relatively recent and profoundly disruptive nature of the methods used to make it possible.

Such a reaction is understandable, and the report lists several reasons that might have seemed to perfectly justify wariness at the time: violation of the dignity of a child who is commodified, the potential subservience of the woman used as a surrogate mother, the subsequent damaging psychological impact on the child and surrogate mother, the depersonalization of motherhood. These concerns justified important reservations. But foreseen risks do not always materialize, and perceptions change accordingly.

I cite, as one example among many, the evolution of the case law of the Court of Quebec, which corresponds to an adaptation that can also be observed elsewhere. In an opinion drafted in 2009 and submitted to the Minister of Economic Development, Innovation and Export Trade, a working committee of the Committee on Ethics, Science and Technology made the following observation regarding surrogacy contracts: [67] [ translation ] ... this contract, while illicit and therefore unenforceable under the civil law, is not necessarily illegal, that is to say, sanctioned by a fine or imprisonment.

Indeed, the Canadian Assisted Human Reproduction Act , which criminalizes certain practices, does not prohibit surrogacy per se but rather simply forbids consideration for surrogacy and consideration for acting as an intermediary or advertising to obtain the services of a surrogate mother. The law does, however, prohibit members of the medical establishment from assisting a female person to become a surrogate mother if they know or have reason to beli

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