Surrogacy inside Québec (surrogate mother)

A parental project involving surrogacy is formed when a person alone or spouses domiciled in Québec (the intended parents) decide to have a child by resorting to a woman (the surrogate mother) who voluntarily agrees to carry the child.

The legal framework for surrogate pregnancies is designed to ensure a clear, safe process that protects the rights of the unborn child and the surrogate mother.

Surrogacy agreement

Only the surrogate mother may decide to terminate the surrogacy agreement. The intended parents may not claim reimbursement of the amounts they paid to the surrogate mother under the regulation.

The intended parents cannot withdraw from the project after entering into the agreement.

Conditions for surrogate mothers

• The surrogate mother must have been domiciled in Québec for at least one year.
• They must be 21 years of age or older.
• There may be no combination of the surrogate mother’s reproductive material with that of one of their siblings, ascendants or descendants.
• Their contribution must be gratuitous.

Remuneration of the surrogate mother

Remunerating the surrogate mother is prohibited. Anyone who remunerates a surrogate mother is guilty of a criminal offence and is liable to a fine of up to $500,000 and imprisonment for a term of not more than 10 years.

The surrogacy agreement may however provide for reimbursing the surrogate mother for certain expenses resulting from the pregnancy, such as those related to delivery and travel expenses.

If the surrogate mother’s pregnancy began before June 6, 2023, the judicial procedure is as follows.

The spouse of the intended father must apply for an order of placement for adoption based on special consent.

Both the surrogate mother and the intended father who provided the reproductive material must consent to the adoption by the intended father’s spouse. The consent must be given in writing in the presence of two witnesses. There are no conditions to be met when choosing the witnesses.

A minimum of 30 days must elapse between consent to adoption and application for an order of placement.

If the surrogate mother’s pregnancy began on or after June 6, 2023, an order of placement can no longer be requested to carry a surrogacy project to term.

In such a case, the intended parents and the surrogate mother must apply to the court after the child’s birth to change the filiation so that it is established with the intended parents.

For it to be accepted, the parental project must meet the following general conditions:

• The surrogate mother and intended parents must have been domiciled in Québec for at least one year when the agreement is signed.
• The surrogate mother must be 21 years of age or older.
• There must be no combination of reproductive material in the same family.
• The surrogate mother may not be remunerated, except for certain expenses authorized by regulation , which may be reimbursed.
• The surrogacy agreement must be signed before the beginning of the surrogate mother’s pregnancy.
• The surrogate mother must consent to the child’s filiation being changed after birth:
  • The consent document must contain the information required by regulation .
  • It must be given by notarial act en minute or in writing (PDF 563 Kb) before two witnesses who have no interest in the surrogacy project. It may also be given by a judicial declaration in the course of proceedings relating to the filiation of the child.
  • If consent is given in a language other than French, it must be accompanied by a translation authenticated in Québec.

The surrogate mother is deemed to have given consent if they die before expressing their will. No evidence to the contrary will be admissible. The same applies where they become incapable of giving consent, if 30 days have elapsed since the child’s birth.

In the event that the surrogate mother disappears without the child before expressing their will, their consent is presumed to have been given if 30 days have elapsed since the child’s birth. Note: This presumption only applies in court proceedings and may be contested.

To apply to a court to change the filiation, you must file an originating application to contest or claim status. The intended parents and the surrogate mother must demonstrate to the court that the general conditions have been met.

Furthermore, this application must be presented within 60 days of the child’s birth, save in exceptional circumstances.

Consequences of non-compliance with general conditions

The surrogate mother remains the child’s parent. It will be impossible to establish the child’s bond of filiation with the person alone or spouses having formed the parental project, and the person alone or the spouses who formed the parental project will not be eligible for benefits under the Québec Parental Insurance Plan (QPIP) .

As an intended parent or a potential surrogate mother, it’s important to seek legal advice before embarking on a parental project involving surrogacy, since failure to meet the conditions laid down by law can have serious consequences. For example, intended parents of a child born from surrogacy who are domiciled outside Québec cannot avail themselves of the filiation rules. The Québec-domiciled surrogate mother would therefore remain the child’s parent.

The intended parents and the surrogate mother are no longer required to apply to the court to change the child’s filiation. The legal establishment of filiation is available to them.

Conditions

People seeking to pursue this avenue must meet the following general conditions:

• The surrogate mother and intended parents must have been domiciled in Québec for at least one year when the agreement is signed.
• The surrogate mother must be 21 years of age or older.
• There must be no combination of reproductive material in the same family.
• The surrogate mother may not be remunerated, except for certain expenses authorized regulation , which may be reimbursed.
• The surrogacy agreement must be signed before the beginning of the surrogate mother’s pregnancy.
• The surrogate mother must consent after birth to change the filiation so that it is established with the intended parents.

They must also meet with one of the following professionals: psychologist, midwife, social worker, couples or family therapist, or sexologist.

This information meeting will focus on the psychosocial implications of the surrogacy project and the ethical issues it involves.

The intended parents and the surrogate mother must attend separate meetings. At the end of the meeting, a certificate of attendance will be provided, which must be kept.

Lastly, a surrogacy agreement must be entered into by notarial act en minute. The intended parents and the surrogate mother must present their infomation session certificate.

After the child’s birth

If the surrogate mother wishes to proceed with the surrogacy project after the child’s birth, the child is entrusted to the intended parents.

Entrusting the child does not mean that they become the child’s legal parents, but they do become the parental authority, which means they can take decisions about the child.

Between eight and 30 days following the birth, if the surrogate mother wishes to proceed with the surrogacy project, they may consent to change the filiation so that it is established with the intended parents:

• The consent document must contain the information required by regulation .
• It must be given by notarial act en minute or in writing (PDF 563 Kb) before two witnesses who have no interest in the surrogacy project. If the surrogate mother’s consent is in writing, they and the witnesses sign it, indicating the date and place the consent is given.
• If consent is given in a language other than French, it must be accompanied by a translation authenticated in Québec.
• The surrogate mother is deemed to have given consent if they die before expressing their will. No evidence to the contrary will be admissible. The same applies in cases where they become incapable of giving consent before having expressed their will, if 30 days have elapsed since the child’s birth, provided that the incapacity is certified by a member of a professional order designated by the Minister of Justice.

The intended parents must provide the declaration of birth  to the registrar of civil status, accompanied by authentic copies of the notarized surrogacy agreement and the surrogate mother’s consent or, depending on the situation, a document indicating the death or a certificate establishing the incapacity.

Upon receipt of those documents, if everything is in order, the registrar of civil status draws up the act of birth with the name of the intended parents. This makes the intended parents the child’s legal parents.