MONTREAL - A judge had little choice but to deny adoption rights to a mother who paid a surrogate to carry her baby for her, the vice-president of a lawyers' association said Thursday.
But Antoine Aylwin said the recent decision by Quebec court Judge Michel Dubois raises a number of questions about how much surrogate parents know about the law when they choose the option to have children.
"Probably many people don't know about those provisions," he said. "Maybe people don't know that it's illegal to have a contract of surrogacy."
Aylwin, who is vice-president of the Young Bar Association of Montreal, said a positive aspect of the ruling is that it should make people get informed.
"That's one of our goals, to educate people on social issues such as this one."
Paying a surrogate mother is illegal in Quebec although Aylwin said it is legal in some other provinces.
In the rest of Canada, surrogates can be reimbursed under the Assisted Human Reproduction Act for expenses such as prenatal vitamins and the cost of travel to visit a doctor.
Quebec is currently challenging the federal law in the Supreme Court on constitutional grounds .
There was no question of paternity when the couple, who are not identifed in the judgment, went to court to adopt the baby girl. They admitted they had paid someone to carry the child after they had difficulty conceiving on their own.
But that deal prompted Dubois to reject their bid when the parents disregarded the law.
"He had no choice," said Aylwin. "We learn at the very first classes in school that you shouldn't be able to do indirectly what you can't do directly."
Aylwin agreed with some legal opinions that have been ventured that suggest Dubois' ruling may prompt parents to lie to the court when they petition to adopt a child conceived through a surrogate.
"That's what we're afraid of," he said. "It's true that this is a way that this judgment can be interpreted.
"The way this child was born and the adoption principle are totally separate. If you don't come forward to the court and spell it out and explain the situation how the child was born, the judge won't know."
He also said the association is concerned about the fate of the child because she doesn't have a legal mother because of the ruling. Aylwin said since the adoption was denied, the child will be an orphan if the father died.
"The judge recognized that the mother that tried to adopt in this case will raise this child," he said. "But will she be in a position to act legally as a parent for this child? Probably not, because she won't be recognized legally as a parent."
Dubois suggested in his Jan. 6 ruling the parents appeared to be counting on the adoption as a "fait accompli" with the court taking into account the best interests of the child as its primary goal.
But while he noted children's rights are key, the Quebec Civil Code voids any agreement where a woman is contracted to carry a child for someone else.
