Law's suppositions about surrogacy against the backdrop of social science.

Author:Campbell, Angela

This article critiques the legal and political discourse that has circulated around the issue of surrogate motherhood in Canada and Quebec. It demonstrates how law and policy debates and approaches in these jurisdictions are premised on distinct suppositions about surrogates' motivations and experiences. These suppositions are not, however, wholly reflected in empirical social science research that has recorded the narratives of surrogates throughout various western jurisdictions. Existing social science research demonstrates both the plurality of factors that prompt women to become surrogates, and the heterogeneity in their experiences. This diversity in surrogates' goals and outcomes stands in contrast to the monolithic image of the surrogate mother that legal and political conversations in Canada and Quebec offer. Such conversations present surrogates as being motivated primarily by financial gain and highly susceptible to coercion and manipulation by intending parents. Juxtaposing legal and political presumptions about surrogacy against the backdrop of empirical social science research illuminates how law and policy in Canada and Quebec rest on incomplete appreciations about surrogacy and about surrogate mothers.

Cet article critique le discours juridico-politique qui entoure la question de la maternite de substitution au Canada et au Quebec. Il montre la maniere dont les discussions et les approches dans ces ressorts reposent sur des hypotheses differentes en ce qui a trait aux motivations et a l'experience respectives des meres porteuses. Ces hypotheses ne se retrouvent cependant pas completement dans les recherches menees en sciences sociales, lesquelles ont consigne les recits de meres porteuses dans divers pays occidentaux. Les recherches existantes en sciences sociales temoignent de la pluralite des facteurs qui incitent les femmes a devenir meres porteuses et de l'heterogeneite de leurs experiences. La diversite reelle de leurs buts et de ce qui en resulte contraste avec la vision monolithique de la mere porteuse qui se degage des conversations juridiques et politiques au Canada et au Quebec. Lors de ces conversations, les meres porteuses seraient principalement motivees par l'appat du gain et subiraient l'influence, par la coercition et la manipulation, des parents demandeurs. En replacant les hypotheses juridiques et politiques dans le contexte des recherches empiriques en sciences sociales, on demontre la maniere dont le droit et la politique au Canada et au Quebec se fondent sur des appreciations incompletes de la maternite de substitution et des meres porteuses.

  1. INTRODUCTION A. Current Canadian Feminist Scholarship on Surrogacy II. THE MOTIVATIONS AND EXPERIENCES OF SURROGATES A. Motivations of Surrogate Mothers 1. Psychological and Emotional Benefits 2. Financial Gain 3. Family Pressures and Expectations B. Experiences of Surrogate Mothers 1. Second-Guessing the Surrogacy Decision 2. Exploitation or Coercion? 3. Emotional and Psychological Consequences III. LEGAL APPROACHES TO SURROGACY A. Canadian Law and Policy 1. Physical and Psychological Harm 2. Exploitation 3. Lack of Informed Consent and Autonomy 4. Commodification of Reproduction and Human Life B. Quebec Law and Policy IV. LAW AND POLICY AGAINST THE BACKDROP OF SOCIAL SCIENCE A. Incongruence between Social Science Research and Law and Policy on Surrogacy B. Law and Policy Approaches that Recognize Surrogates' Motivations and Experiences V. CONCLUSION I. INTRODUCTION

    While commonly associated with "new" reproductive technologies, surrogacy (1) is referenced in the Book of Genesis as an accepted practice for overcoming infertility. (2) It is a long-standing practice, but surrogacy's moral propriety and legal validity remain ambiguous in most societies. In response to both an apparent increase in surrogacy and a growing controversy over this practice in many societies, a surge in international comparative scholarship and literature on surrogacy issues has developed. (3) Legal uncertainty and resulting tensions continue to exist in Canada and internationally. Although in Canada a federal statute criminalizes payment for surrogacy or brokering surrogacy arrangements, (4) the provinces and territories have jurisdiction, as part of their general competence in matters of property and civil rights, to decide whether private surrogacy arrangements are enforceable. Most provincial and territorial jurisdictions are silent on this matter. Alberta, Nova Scotia and Newfoundland and Labrador have, however, set some parameters delineating when surrogacy agreements will lead to the legal recognition of parentage for those who contract with surrogates. (5) In contrast, Quebec rejects the enforceability of all surrogacy agreements. This includes both commercial and altruistic surrogacy. While the former involves remuneration to the surrogate, the latter envisions no exchange of money, except possibly compensation for the surrogate's losses or expenses. (6)

    This article does not weigh in on the ethics of surrogacy. (7) It also refrains from making explicit calls for law reform in Canada or Quebec. (8) Rather, this work explores whether the legal and political discourses in Canada and Quebec account for the rationales and lived experiences of surrogate mothers as reported in social science literature. Ultimately, it concludes that they do not. While the law and political debates present surrogate mothers as being motivated primarily by financial gain and susceptible to diverse risks, empirical research reveals a range of factors prompting women's choices to become surrogates and indicates that many surrogates experience positive outcomes by engaging in this practice.

    Part II of this article discusses the choices and experiences of women who become surrogate mothers. It draws on social science research that has studied surrogates' motivations and experiences during their surrogate pregnancies and afterwards. Part III identifies how surrogates and the practice of surrogacy are imagined and presented in Canadian law and political discourse. Incorporated within this analysis is an examination of law and policy in Quebec--the sole Canadian province whose laws cast surrogacy as against public morals and policy. Law and policy on surrogacy are assessed through an analysis of relevant legislation, policy reports and political debates. In Part IV, social science literature is juxtaposed against legal and political discourse with a view to analyzing whether, and how well, legal representations of surrogacy capture the narratives offered by social science scholarship.

    A. Current Canadian Feminist Scholarship on Surrogacy

    This work positions itself within a recent surge of feminist writing on legal approaches to surrogacy in Canada and Quebec. Four noteworthy texts critique Parliament's and Quebec's rejections of surrogacy, while arriving at their respective conclusions from distinct paths.

    Busby & Vun rely on a substantial review of empirical research on surrogacy to critique conventional feminist presumptions and debates associated with this practice. They suggest that empirical scholarship should supersede feminist concerns about surrogacy's potential to capitalize on women's economic and social vulnerabilities and about surrogacy's ability to objectify and commodify women's reproductive capacity. Busby & Vun therefore call for the revisiting of Canadian federal prohibitive approaches to surrogacy, in favour of a new regime that regulates rather than prohibits the practice. (9)

    Three other articles circumscribe their analyses to Quebec's legal response by assessing the province's statutory rejection of all contractual agreements for surrogacy on the basis that they contravene public order. (10) Langevin's moral stance on surrogacy is quite different from that of Busby & Vun. She contests the discourse of female equality and empowerment that some have linked to surrogacy and maintains that the practice will inevitably exploit women. Langevin nevertheless objects to the non-recognition of surrogacy agreements in Quebec, noting that the practice is ongoing and has been accepted by courts across Canada, including in Quebec despite the explicit terms of article 541 CCQ. She therefore recommends a strict regulatory framework that would allow for remunerated and unremunerated surrogacy. According to Langevin, this framework would recognize the value of women's work as surrogates. (11)

    A more recent article similarly questions the viability of Quebec's legal approach to surrogacy contracts. Mirroring Langevin's work, Bureau & Guilhermont stress the persistence of such contracts and judicial acceptance of them in some cases, despite their ostensible nullity under the CCQ. Furthermore, like Busby & Vun, Bureau & Guilhermont rely on empirical research to argue that concerns about surrogacy's invidious nature are largely ideological and do not play Out on the ground in Western social contexts. This work also considers the possible risk to children born through surrogacy, should the law refuse to recognize their filial connection to their intending parents. In view of these combined factors, Bureau & Guilhermont see broadened possibilities for permitting surrogacy in Quebec. (12)

    A third text that centres on Quebec's legislative framework concentrates on determinations of filiation for children conceived through surrogacy arrangements. (13) In this work, Giroux explores recent decisions from the Court of Quebec on adoption applications submitted by one or more intending parents with the consent of the surrogate mother. As discussed in Part III, this jurisprudence is divided. One decision refused to allow the adoption in the face of Quebec's legislative view that surrogacy contravenes public order, whereas other decisions have issued adoption orders on the basis of children's best interests. Giroux maintains that the latter approach is more compelling from a...

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