Published In

Canadian Journal of Women and the Law

Document Type

Article

Publication Date

2015

Subjects

surrogacy, equality, civil law, sexuality, sexless reproduction, filiation

Abstract

The regime for the formal establishment of parent-child relationships in the province of Quebec was substantially modified in 2002 in order to achieve equality. Reforms to filiation – the legal bond connecting child and mother or child and father – in Quebec provided means for same-sex couples to adopt, for lesbian couples to conceive using donated sperm and clarified the filiation of children born of assisted procreation. This ‘successful’ reform in terms of equality left untouched an existing rule justified by women’s equality, namely, what the civil law calls the absolute nullity of surrogacy agreements. Surrogacy raises questions about what is left after an equality-driven reform. Since 2002, in line with the rise of sexless reproduction (i.e. reproduction disconnected theoretically and practically from sexuality), surrogacy has attracted much attention in Quebec. In 2014 the Court of Appeal rendered judgment in its first surrogacy case lower Quebec courts have rendered nine decisions, scholarly articles on the issue abound and the topic has been covered in various media.

This article does not argue for or against surrogacy. Instead, it challenges conceptions and understandings about parentage, gender roles and sexuality using surrogacy as the principal locus of analysis. The exploration is discursive and metaphoric; it tackles the jurist’s imagination. It proposes a new narrative on an issue that has been extensively studied. Refraining from drawing any firm legal conclusions – the small pool of decisions available makes generalization hazardous – I want to speculate about the ways in which an uncertain legal norm – the absolute nullity of surrogacy agreements – makes space for problematic labels to enter legal reasoning. I show how the absolute nullity of surrogacy agreements in Quebec has led judges to ban the filiation of children born of surrogacy in certain situations and how it has forced judges to apply creative, albeit unpredictable, solutions. A central historic argument running through the text is that Quebec’s regime on filiation is a powerful device to control or hierarchize sexual behaviours and that surrogacy could be its new power tool.

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