A Canadian surrogacy case has reached the Ontario Superior Court after the relationship between a same-sex couple and their surrogate broke down. The case highlights the ethical and moral dilemmas that surrogacy can raise, particularly when a child’s arrival is bound by contractual terms.
The dispute dates back to June 2024, when an ultrasound revealed that the baby had a cleft lip, a possible cleft palate, and a minor heart defect. The intended parents asked the surrogate to abort the baby at 22 weeks, citing a clause in their surrogacy agreement relating to genetic or chromosomal abnormalities. The surrogate refused. After further testing at a Toronto hospital confirmed that the baby was otherwise healthy, the intended parents agreed to continue the pregnancy.
The relationship between the intended parents and the surrogate reportedly went sour after the disagreement over abortion. Further conflict arose when the surrogate insisted on a home birth against the intended parents’ wishes, and later sought reimbursement of approximately $10,000 in pregnancy-related expenses through small claims court. Her claim was ultimately barred by the contract’s arbitration clause.
In response, the intended parents filed a civil suit, now being handled by a major Toronto law firm, seeking damages reportedly totalling around $600,000. They allege that the surrogate failed to keep them informed about the baby’s health, endangered the child, caused emotional distress, and breached confidentiality. The surrogate denies all of these claims.
The surrogate, a single mother and corrections officer from Ontario’s Muskoka region, told the National Post: “I just feel used. They didn’t get the perfect child they wanted, and they threw me away.” Her sentiments highlight the commodified aspect of surrogacy and how, despite existing Canadian laws, the practice may still fall short in safeguarding both the baby and the surrogate mother.
Sally Rhoads-Heinrich, a surrogacy agency owner, said the “unusual sequence of events highlights the vulnerable position of Canadian surrogates, who are in high demand but are legally barred from charging commercial fees, unlike counterparts in the U.S. and some other countries. They can only be reimbursed for receipted expenses. Most get pregnant simply to help others but sometimes fail to get their costs paid or are literally left holding the baby when the parents walk away.”
She also noted that “complete bans or restrictions on surrogacy in places like Thailand and India have made Canada, where a surrogate’s health-care costs are covered by Medicare, a popular destination for would-be parents.”
The intended parents’ own correspondence reportedly invoked a contract clause, Article 8.5(a), concerning genetic or chromosomal abnormalities, to justify their request for abortion. Whatever the legal merits of that clause, the language it employs is difficult to reconcile with not only the protective and loving nature of parenthood but also the inherent dignity of a child, regardless of contractual conditions. The case is ongoing before the Ontario Superior Court.
*Written by Family First staff*
