Rules for surrogacy where the surrogate mother lives outside Québec

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

For pregnancies that began before June 6, 2023, the judicial procedure still requires the spouse of the intended father to 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.

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

For pregnancies that began on or after June 6, 2023, an order of placement can no longer be requested for adoption based on special consent to carry a surrogacy project to term.

If the surrogate mother is domiciled outside Québec, the child’s filiation is established in her State of domicile. For filiation to be recognized in Québec, the foreign judgment establishing filiation or the foreign act of birth must be recognized by a Québec court.

To be admissible, the application for judicial recognition must be accompanied by the following documents:

• The child’s foreign act of birth or the foreign decision establishing the filiation, as applicable.
• The foreign legislation.

The intended parents must demonstrate to the court that the general conditions and prerequisites have been met. They must also prove that the rules of the foreign State have been met.

General conditions

• 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, but certain expenses authorized in her State of domicile may be reimbursed.
• The surrogacy agreement must pre-date the beginning of the surrogate mother’s pregnancy.
• The surrogate mother must give consent after the birth.

The surrogate mother’s consent must be given in writing or by judicial declaration. Note that if it is given in a language other than French, it must be accompanied by a translation authenticated in Québec, that is, certified as true to the original document. This can be provided by a member of the Ordre des traducteurs, terminologues et interprètes agréés du Québec (OTTIAQ).

Prerequisites

• The person alone or the couple who formed the parental project (intended parents) must have been domiciled in Québec for at least one year when the agreement is signed.
• If the project is to be carried out outside Canada, one of the intended parents must be a Canadian citizen or permanent resident. If the person is a permanent resident and the other spouse, if any, is not a Canadian citizen, the resident must also have a biological link with the child. Note that since there are currently no designated States outside Canada, parental projects cannot be carried out outside Canada.

Here is a checklist (PDF 89 Kb) to help you ensure your application is complete.

If the child’s filiation is recognized by a Québec court, the foreign act of birth may be inserted in the register of civil status, or the registrar of civil status may draw up the act of birth from the judicially recognized foreign decision, upon which it will be possible to obtain, for example, a birth certificate issued by the registrar of civil status.

Consequences of non-compliance with general conditions and prerequisites

It’s important to seek legal advice before embarking on a parental project involving surrogacy with a surrogate mother living outside Québec, since failure to meet the conditions laid down by law can have serious consequences.

The child’s filiation with the person alone or the spouses who formed the parental project will not be recognized in Québec.

The person alone or the spouses who formed the parental project will not be eligible for benefits under the Québec Parental Insurance Plan (QPIP).

Starting June 6, 2024, prerequisite conditions will be added to those already applicable.

Mandatory information session

The intended parents must attend an information session given by a member of one of the following professional orders: Ordre des psychologues du Québec, Ordre des travailleurs sociaux et des thérapeutes conjugaux et familiaux du Québec, Ordre professionnel des sexologues du Québec, Ordre des sages-femmes du Québec. To find one, use the online search tool of the relevant professional order.

The meeting will focus on the psychosocial implications of the surrogacy project and the ethical issues it raises.

At the end of the meeting, you will receive a certificate of attendance. Make sure to keep it. This document is required when applying to the Minister of Health and Social Services (MSSS) for prior authorization.

Government-designated States

The parental project involving surrogacy must take place in a province, territory or country (foreign State) designated by the Gouvernement du Québec. In other words, the surrogate mother must be domiciled in one of the following designated States: Alberta, British Columbia, Prince Edward Island, Manitoba, Nova Scotia, Ontario or Saskatchewan.

Procedure

Authorizations must be obtained from the MSSS:

• prior authorization (the intended parents must have been domiciled in Québec for at least one year before applying for prior authorization);
• authorization to continue the project;
• certificate of compliance after the child’s birth.

For more information, visit Procedure to carry out a parental project involving surrogacy with a surrogate who is domiciled outside Québec.

Once the child is born, an application for judicial recognition must be filed. To be admissible, it must be accompanied by the child’s foreign act of birth or the foreign decision establishing the filiation, the foreign law and any certificate of compliance issued by the MSSS.

The intended parents must demonstrate to the court that the general conditions and prerequisites have been met. They must also prove that the rules of the foreign State have been met.

This application must be submitted as soon as possible after receiving the certificate of compliance or notice of non-compliance from the MSSS.

If the application is not submitted within a reasonable time, the Director of Youth Protection may do so in lieu of the intended parents.