An Ontario same-sex couple is suing the surrogate mother who carried their son, two years after she refused their request to abort the fetus because of a cleft lip and possible genetic abnormalities. The surrogate insisted on further testing, and specialists eventually indicated the child was healthy with a relatively minor birth defect, leading the couple to agree to continue the pregnancy.
Lawsuit Alleges Breach of Duty
In a suit filed in Ontario Superior Court this May, the parents allege the woman failed to keep them informed about the baby's health, put the child at risk, caused them emotional distress, and violated their confidentiality. The surrogate denies all charges vehemently. The statement of claim does not specifically mention the June 2024 request to terminate the pregnancy at 22 weeks, but both the surrogate and the agency head say the relationship soured after the abortion disagreement.
“That’s when everything changed … they wanted a termination,” said Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online. The National Post is not naming the parties to protect privacy but has viewed the parents’ statement of claim and the abortion request letter.
Escalating Tensions
Tensions escalated after the surrogate insisted on a home birth and later filed a small-claims suit seeking reimbursement for out-of-pocket expenses. That dispute went to arbitration, but the couple then served the single mother, a corrections officer, with a full-blown civil suit handled by Faskens, a major law firm. Though the suit does not specify damages, the surrogate says the plaintiffs are seeking about $600,000.
“You know I’m a single mom, you know I have a daughter, and you’re basically suing me for my house. It seems very s—ty, it’s just awful,” the Muskoka region resident said. “I just feel used … They didn’t get the perfect child they wanted and they threw me away.”
Vulnerability of Canadian Surrogates
Rhoads-Heinrich noted the case highlights the vulnerable position of Canadian surrogates, who are in high demand but legally barred from charging commercial fees, unlike in the U.S. They can only be reimbursed for receipted expenses. Many surrogates help others altruistically but sometimes fail to get paid or are left with the baby if parents walk away.
“What I find most difficult in this is they are suing the woman who brought their son to them,” said Rhoads-Heinrich. “How is their son going to feel some day if he learns that?”
Complete bans or restrictions on surrogacy in places like Thailand and India have made Canada, where surrogate health-care costs are covered by medicare, a popular destination for intended parents, she added.
