Global Affairs Canada changing policy as gay diplomat wins surrogacy expenses case

OTTAWA -

A gay employee of Global Affairs Canada posted in China, who travelled to the U.S. for the birth of his child through surrogacy, will have those expenses covered after a tribunal ruling.

The public service labour board ruled in August it would be discriminatory if Ottawa does not compensate travel expenses for any diplomat in a same-sex couple attending a surrogacy birth.

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"The reality is we attract all sorts of different people now, and we have to be more agile at helping people who have all sorts of different family scenarios," said Hugues Alexandre Moniz.

Both sides are now negotiating compensation in a case that has taken years to get to this point. Hugues Alexandre's son, Oscar, is now eight. He also has a sister, Evelyn, also born through surrogacy. Both live in Hong Kong with their dads.

"It took time; it took effort. But in the end, I'm hopeful that this will bring us to a different place," Moniz said.

"Hopefully, we'll create some sort of corporate history and making sure other people in our situation will not have this kind of constant wall."

The decision comes as Global Affairs Canada is trying to overhaul employment rules to deal with problems retaining talent.

Moniz's union says the case illustrates long-standing issues Ottawa faces in modernizing the foreign service.

Moniz was posted in an administrative role at Canada's consulate in Guangzhou, China, when he told his supervisors he planned on travelling to the U.S. for a surrogacy birth.

His colleagues and supervisors seemed thrilled, and set up preliminary arrangements for Moniz to take leave and to receive a cash advance for travelling and logistical expenses.

"They were all curious to see when we'll come back with our kid, and to know the gender," he said.

Headquarters initially signed off on the plan, which included airfare and living expenses for the couple, as well as the relocation expenses for the baby once it had the right documents to travel to Guangzhou, such as a diplomatic passport and Chinese visa.

But a review committee raised concerns shortly after. The committee was unclear whether corporate polices on health care covered Moniz and his husband because neither were giving birth. The baby would be born in Indianapolis, which the committee said might not meet the requirement for procedures to be undertaken in the "nearest suitable place."

Moniz said two of his colleagues in Guangzhou also travelled to another country with their respective spouses to birth a child, though not through surrogacy, because Health Canada considers China among countries that are unsuitable for diplomats to give birth in. The federal government did not contest those facts.

The case escalated to a government panel, which ruled that neither Moniz nor his husband required medical care, and didn't merit any more coverage than he would have received as a public servant living in Ottawa. That would include parental leave but not travel expenses to reach the U.S.

Alternatively, the government offered to cover airfare for one parent to attend the surrogate birth.

Moniz, whose work included overseeing the mission's human-resources issues, argued that Global Affairs' response amounted to discrimination on the basis of sexual orientation and family status.

He brought the case to the Public Service Labour Relations and Employment Board.

The board ruled last August that Ottawa had been discriminatory in how it interpreted its policies.

Ottawa had argued the benefits are meant to cover medical treatment when diplomats or their relatives can't access adequate care at their posting location, and not a surrogate pregnancy, regardless of sexual orientation.

The government argued opening up the policy could allow expenses for adoption cases and result in undue costs.

An adjudicator ruled Ottawa was too narrowly interpreting its own rules and that this resulted in discrimination, particularly since the policy compensates couples travelling to complete their biological pregnancy.

"There is something heartbreaking in the griever feeling that somehow, his parenting experience is being treated differently from that of his colleagues in heterosexual relationships," Marie-Claire Perrault wrote.

Global Affairs Canada spokeswoman Marilyne Guevremont said the department crafts benefit policies with unions and other departments who post public servants abroad.

"GAC will implement the decision as rendered by the board," she wrote.

Global Affairs is also reforming its policies overall, noting in an initial plan released last June that diplomatic postings were designed decades ago based on "a pre-defined family structure with one partner designated to manage the household and provide unpaid labour."

The plan said benefits for diplomats "are in profound need of a revamp" and should be rejigged "through an intersectional and anti-racism lens" with particular attention to women and LGBTQ+ employees.

Pamela Isfeld, head of the Professional Association of Foreign Service Officers, said it's "not the 1950s anymore," but benefits policies haven't "really kept up with those realities."

"It makes it harder for people to convince their families that it's a good idea to go out on a posting. It limits the number of options that people are willing to look at."

Moniz stressed that he's proud to work for Global Affairs. "I want to see it as a way to help the department be better," he said of his case.

"Sometimes we have to push for change. We cannot just be sidelined or look at things happening and say, 'Oh, it would be a better world if something were to change."'

 

This report by The Canadian Press was first published Jan. 13, 2024.