Declaration of birth of a child born as a result of a surrogate pregnancy
The new rules governing surrogate pregnancies aim to better protect the unborn child and the surrogate mother.
A transitional period has begun since the assent of the Act to reform family law with regard to filiation and to protect children born as a result of sexual assault and the victims of that assault as well as the rights of surrogates and of children born of a surrogacy project. There are three periods depending on whether the pregnancy began either before June 6, 2023, or between June 6, 2023 and March 5, 2024, or on or after March 6, 2024.
Surrogacy outside Québec
Since June 6, 2024, parental projects involving surrogacy outside Québec are subject to authorizations issued by the Ministère de la Santé et des Services sociaux. Once the child is born, an application for judicial recognition in Québec must be made for these projects. To learn about the conditions applicable to this type of parental projects, please visit the Québec.ca website, more specifically the pages “Rules governing surrogacy outside Québec” and “Procedure to carry out a parental project involving surrogacy with a surrogate who is domiciled outside Québec”. You may also contact Services Québec at 1-877-644-4545.
For a pregnancy that started before June 6, 2023
The processing of a declaration of birth of a child born from a surrogate pregnancy that began before June 6, 2023 follows the rules already applicable. Thus, the Directeur de l’état civil registers the child with the declared parent and the intended parents must then go to court to adopt the child and change the filiation, if applicable.
For a pregnancy that began between June 6, 2023 and March 5, 2024
When the surrogate pregnancy began between June 6, 2023 and March 5, 2024, the name of the mother or parent who gave birth is always entered on the child’s birth certificate. Therefore, a surrogate mother must complete and sign the section of the declaration of birth relating to the woman or person who gave birth.
If the surrogate mother consents after the birth of the child to the establishment of filiation in favour of the intended parents, the latter must apply to the court within 60 days of the birth to change the filiation of the child.
The court must ensure that the general conditions concerning the surrogacy project have been complied with.
Upon receipt of the judgment, the Directeur de l’état civil will amend the child’s act of birth. Thus, the name of the surrogate mother will be removed and replaced by the name of the intended parents, who will officially become the parents of the child.
Important: The declaration of birth can be completed on paper or electronically for pregnancies that began before March 6, 2024. Indeed, in this case, there are no other paper documents to send to the Directeur de l’état civil. The conditions of validity of the parental project are analyzed by the court.
Pregnancy that began on or after March 6, 2024
The processing of a declaration of birth of a child born as a result of a surrogate pregnancy that began on March 6, 2024, or after that date allows the declaration of the filiation of the intended parents directly to the Directeur de l’état civil (declaration by legal route) if the surrogate mother has consented after the birth to the filiation being established in favour of the intended parents.
Reminder: If the conditions allowing the establishment of filiation by legal route are not respected, the intended parents may apply to the court to have the filiation of the child changed and obtain a judgment under which the Directeur de l’état civil will draw up an act of birth mentioning the filiation of the intended parents (declaration by judicial route).
For pregnancies that began on or after March 6, 2024, intended parents must submit the following documents to the Directeur de l’état civil:
- a declaration of birth in paper version only;
- an authentic copy in paper version of the notarized surrogacy agreement,written in French by a notary member of the Chambre des notaires du Québec and signed before the beginning of the pregnancy;
- a copy of the consent of a woman or person who gave birth to the child in a parental project involving surrogacy, written within 30 days of the birth, but not before the first seven days of the birth. This consent must be accompanied by an authenticated translation in Québec if it is in a language other than French.
Consent of the woman or person who gave birth
The consent of the surrogate mother or person can take two forms:
- a notarial act en minute (a copy of the notarial act must be provided);
- an act under private writing, signed in front of two witnesses who have no interest in the surrogate pregnancy project and including the date and place of signature (a copy of the act under private writing must be provided).
The surrogate mother’s consent expressly aims to ensure that her filiation with the child is deemed never to have existed and that the filiation is established in favour of the person alone or the two spouses who formed the parental project.
Thus, the consent must contain a statement that the surrogate mother
- understands that she is the parent of the child;
- understands that the filiation of the child can be established in respect of the person alone or the spouses who formed the parental project only if she consents;
- understands that her consent allows the filiation of the child to be deemed established in favour of the person alone or the spouses who formed the parental project from the birth of the child;
- understands that her bond of filiation is severed and is deemed never to have existed;
- acknowledges that her consent is free and informed.
If the consent of the woman or the person who gave birth to the child is given by act under private writing in the presence of two witnesses, this act must contain the name, capacity and address of the woman or the person as well as those of the witnesses. This act must also contain a statement from the witnesses that they have no interest in the surrogacy project.
If, after analysis, the consent is considered to be compliant, the act of birth is drawn up on behalf of the intended parents. Otherwise, the act of birth could be drawn up in the name of the woman or the person who gave birth and the intended parents will then have to apply to the court to change the filiation of the child.
For this purpose, it is possible to use the form the consent of a woman or person who gave birth to the child in a parental project involving surrogacy.
Reminder: The child’s declaration of birth must be completed in paper format for pregnancies that began on or after March 6, 2024, since it is attached to the notarized surrogacy agreement and the consent of the surrogate mother.
Other useful link
- Surrogacy
on the Québec.ca website
Date de révision : 2024-05-07
