Every five weeks. Two fathers fought to have the Quebec Parental Insurance Plan (QPIP) give them 10 weeks of paternity leave – instead of five – to spend with the baby they had after resorting to a surrogate. The Quebec Administrative Court gave them their case, correcting what the two fathers believed to be “discriminatory treatment.”
Posted at 5:00 am
Veronique Larocque The press
The life of Gabriel Destrempe Rochette and his wife changed last March. They eventually met their son, who was born to a surrogate mother in the United States.
At home, the two fathers each applied for parental allowance for five weeks. To their amazement, only one of the two requests was approved. “I thought we were two fathers on the birth certificate [délivré aux États-Unis]the QPIP will recognize our paternity leave,” says Gabriel Destrempe Rochette.
In the course of discussions with the QPIP agents, the lawyer by profession understands that the rejection of his application is due to the fact that only one of the two fathers can receive the five weeks of paternity leave.
However, the couple can split the 32 weeks of parental leave over a total of 37 weeks. That number is below the 55 weeks offered to parents giving birth or adopting a child.
Benefit tables on the QPIP website show the weeks allowed after childbirth and during an adoption, but none of them give the number of weeks allowed in the event of pregnancy for others not followed by adoption (which is the case ). if both fathers are on the birth certificate).
Asked about this number from La Presse, the Ministry of Labour, Employment and Social Solidarity sent this reply by email: “According to the law on parental insurance, the birth of a child entitles the child to a maximum of 5 weeks of exclusivity (to the father or the second parent who did not give birth to a child) and a maximum of 32 weeks of parental benefit, which can be divided between the two parents whose parentage is recognized on the birth certificate. »
This is, moreover, the position defended by the department before the Québec Administrative Tribunal (TAQ), which was asked to consider, for the first time, a request for paternity leave for any father of a child who has given birth to a pregnancy for others (including gestational -called surrogacy or surrogacy).
For his part, Gabriel Destrempe Rochette argued that five weeks of paternity pay should be granted per father and not per birth.
The TAQ believed that the law should be interpreted in the spirit of Gabriel Destrempe Rochette.
“Critical Moment”
In its November decision, the Court recalled that the purpose of the Parental Insurance Act is “to provide a parent with income replacement to enable them to be emotionally close to their child at the beginning of their life, at a crucial time tie.
He points out that the ministry’s position “results in children being deprived of attendance in certain cases [d’un] parent who has to work”.
The TAQ also notes that it is “difficult to understand why” the ministry provides five-week benefits to two adoptive parents, but not to those using surrogacy.
Gabriel Destrempe Rochette is very happy with the ruling and hopes it will help other families. However, he wonders how many parents in his situation lost time with their child because they didn’t have the resources or strength to take legal action.
“There isn’t just one family model with a father, a mother, a little boy and a little girl. There are many family models in Quebec. I think it’s good that all role models are recognized and have the same rights, always in the interest of the child,” says the young father.
Please review
Julie-Yan Fontaine and her spouse Mathieu Blanchette were informed of the recent TAQ decision and submitted a request to the QPIP to review their file. The Lac-Saint-Jean couple, who have resorted to surrogacy in Ontario, hope this approach will allow them to spend 11 months with their little Tristan, a few weeks longer than the 37 currently granted.
If the couple resorted to a surrogate mother to fulfill their dream of having a child, it was for health reasons, explains the mother, who had to terminate a pregnancy at 20 weeks. “The doctors told me that it would be better if I didn’t have a pregnancy anymore and that I’m turning to pregnancy for others. »
PHOTO PROVIDED BY MATHIEU BLANCHETTE
Mathieu Blanchette, Julie-Yan Fontaine and little Tristan
The couple opted for in vitro fertilization. “Biologically, the mother is 100% Julie-Yan,” emphasizes Mathieu Blanchette.
Despite this, Julie-Yan Fontaine was not entitled to the 18-week maternity allowance as this is reserved for maternity allowance. As for Gabriel Destrempe Rochette, he was only given weeks of maternity leave.
“You are a special case.” “I’ve always been told that,” says the mother of her conversations with the QPIP agents.
After the TAQ’s decision, will the QPIP review the number of weeks granted to families who resort to surrogacy? “Quebec Parents’ Insurance takes note of this decision and intends to comply with it. Work is underway to determine the impact of this judgment,” the Ministry of Labour, Employment and Social Solidarity replied by email.
* The number of weeks given in the article is that of the QPIP base plan.
Pregnancy for others, a law firm in Quebec?
Pregnancy for others is not illegal in Quebec, recalls Me Doreen Brown, an attorney specializing in family law. “In Canada it is illegal to pay for a child. However, we have the right to reimburse the surrogate mother’s expenses,” she explains. When Quebec couples choose to go to other Canadian provinces or to the United States to avail of surrogacy, it is because the practice is not currently regulated by law in Quebec. The agreement between a woman who agrees to carry a baby for a couple and the latter has no value. Another difference: Elsewhere in Canada and the United States, the names of intended parents can be included on birth certificates, which is currently not the case in Quebec. In the province, the non-biological parent must adopt the child.
“We want equal treatment”
PHOTO MARTIN TREMBLAY, PRESS ARCHIVE
Mona Greenbaum, Founder and CEO of the LGBT+ Family Coalition
Although she welcomes Gabriel Destrempe Rochette and her spouse’s “victory” in Quebec Administrative Court, Mona Greenbaum, founder and executive director of the Coalition of LGBT+ Families, believes the couple should have asked for more weeks of benefits than the two paternity leave , which he received.
” They were successful. But they are still only 42 weeks old. All other children in Quebec are 55 weeks old with their parents. […] I don’t think you asked enough,” she says.
“Why is the child born through surrogacy? [grossesse pour autrui] is not the same number of weeks as all other children? It makes no sense. It’s discriminatory […]. We want equal treatment,” continues Mona Greenbaum.
The executive director of the LGBT+ Family Coalition also hopes that changes in this direction will see the light of day before the end of this year. Family Law Reform Bill 2, introduced last spring, would regulate pregnancy for others and give all new parents an equal number of weeks of Quebec Parental Insurance Plan (QPIP) benefits.
However, the extensive bill, which included around 360 items, was divided into two. Pregnancy monitoring for others has been postponed.
The Justice Department notes that it remains Minister Simon Jolin-Barrette’s intention to introduce a bill on the subject, but does not give a date.
“It is a reproductive process that exists and is practiced in Quebec, but without being legally recognized and regulated, which can put the resulting children in a vulnerable position. Our goal is to ensure the protection of both the rights of children resulting from pregnancy for others and the rights of surrogate mothers,” the ministry wrote in an email to La Presse.
another fight
The struggle faced by families resorting to surrogacy is similar to that faced by adoptive parents for years, points out Isabel Côté, Canadian Research Chair in Reproduction for Others and Family Bonds.
“The adoptive parents complained a lot about this before the law was changed and they could have more time with their child. […] Children born from surrogacy face the same problems. »
The professor from the University of Québec in Outaouais recalls that the QPIP, once set up, “should allow children to grow up during their first year of life with their parents as the first point of reference”.
“There is a need for children to be able to benefit, regardless of the circumstances of their birth,” she says.