Ontario Same Sex Couple Sues Surrogate Mother For Not Aborting Fetus With Cleft Lip

Our immediate Canadian neighbors continue to plumb new moral chasms in health care:

https://nationalpost.com/news/couple-sues-ontario-surrogate-mother-who-refused-to-abort-fetus

Couple sues Ontario surrogate mother who refused to abort fetus
The surrogate said the fetus had a cleft lip and possible genetic abnormalities, but the couple changed tack as it emerged that the birth defect was relatively minor

A Canadian 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 Ontario-based surrogate insisted that more tests be conducted and eventually the same-sex couple agreed to let the pregnancy continue, as specialists indicated he was a healthy child with a relatively minor birth defect.

But in a suit filed in Ontario Superior Court this May, the parents allege the woman failed to keep them informed about the health of the baby, put the child at risk, caused them emotional distress and violated their confidentiality, all charges the surrogate denies vehemently.

The statement of claim does not specifically mention their request in June 2024 to terminate the pregnancy at 22 weeks. But both the surrogate and the head of the agency that brought them together say the relationship started to sour after the abortion disagreement.

“That’s when everything changed … they wanted a termination,” said Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online and a pioneer in the field.

The National Post is naming neither the surrogate nor the parents of the young child to protect their privacy, but has viewed the parents’ statement of claim, and the letter requesting the abortion.

Jonathan Lancaster, a Toronto-based lawyer for the couple, said he and his clients were declining to comment.

Tension between the parents and surrogate appears to have been exacerbated after the woman insisted on going ahead with a home birth, and later filed a small-claims suit asking the parents to reimburse out-of-pocket expenses. The expenses dispute has gone to arbitration, but in the meantime the couple served the single mother, a corrections officer, with a full-blown civil suit, handled by Faskens, a powerful Bay Street law firm.

Though the suit does not claim a specific amount of damages, she says the plaintiffs have indicated they’re 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 resident of Ontario’s Muskoka region said in an interview. “I just feel used … They didn’t get the perfect child they wanted and they threw me away.”

For Rhoads-Heinrich, 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 said.

“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 the surrogate’s health-care costs are covered by medicare – a popular destination for would-be parents, she said.

About 100 families are looking for a surrogate here for every one woman willing to provide the service, she estimates.

“The whole world is coming to Canada,” said Rhoads-Heinrich.

She argues surrogates should be able to charge fees – even if it’s a modest amount that’s proscribed by regulation – to ensure they’re fairly treated.

The federal Assisted Reproduction Act is designed in part to protect surrogates and egg donors by making it illegal to commercialize the human-procreation process, noted Juliet Guichon, a bioethics professor at the University of Calgary. But she said the Ontario surrogate’s case underscores that women who give birth for others, sometimes risking their lives, are still vulnerable, noting that the parents appear to be to punishing the woman for allegedly contravening their agreement.

“Moreover, they earlier sought to end the fetus’s life for a medical condition that … can be completely overcome by surgery and therapy,” Guichon added. Based on what she knows about the case, she says, “The question arises as to whether it is in the best interests of the child to be raised by these people.”

The Ontario woman says she became interested in surrogacy after seeing two close friends face barriers getting pregnant. “I work in an awful place. I see the worst humans in the world and it was like something positive.”

After her profile went up on Surrogacy in Canada Online’s website, she said she almost immediately heard from 50 families wanting her services, some of them even sending flowers to her home. Her extensive screening process narrowed the group down until she eventually settled on the same-sex couple and underwent in-vitro fertilization with embryos from a donor egg and each of their sperm.

Their rapport was positive for the first months of the pregnancy, the woman says, but then in late June of 2024 she told them about an ultrasound that indicated the baby had a cleft lip, possibly a cleft palate and a minor heart defect. The surrogate officiates at high-level international wrestling competitions and was in the Dominican Republic for a tournament soon afterward when she received a legalistically worded letter from the “intended parents.”

“Considering that medical tests indicate that the fetus has, or is likely to have, a genetic, chromosomal or other abnormality or defect, and in accordance with article 8.5 (a) of our surrogacy agreement … we want to inform you of our wish that the pregnancy be terminated,” it said. “Although very difficult, this decision is free and informed.”

Away from home in a developing country and lacking in-person supports, the surrogate said she was “devastated” and a “mess” after receiving the unexpected request.

She said she would have agreed to an abortion if the baby had no chance of survival after birth, but was not comfortable terminating a 22-week fetus with what she considered a largely cosmetic defect. She says the parents came to Toronto, where doctors at Mount Sinai Hospital – which specializes in obstetric care – said the baby had no problems beyond the cleft lip and was generally healthy. The parents agreed to go ahead.

Surrogacy consultant Sally Rhoads-Heinrich: “What I find most difficult in this is they are suing the woman who brought their son to them. How is their son going to feel some day if he learns that?”

Canadian law is clear that a pregnant woman has the final say over whether she has an abortion or not, regardless of what others, including a fellow parent, may tell her to do, said Guichon.

More conflict arose when the mother insisted on keeping to the original plan to have the baby delivered in a private home by midwives, not in a hospital as the parents requested because of the cleft lip. The baby had breathing problems on delivery but soon recovered when the midwives administered oxygen, and called an ambulance to take him to hospital, she says.

The parents took the baby home and for the most part cut off communication with the surrogate, she says. She eventually asked them to reimburse her for about $10,000 in outstanding expenses, including lost income from work during the pregnancy, contributions to her pension plan she missed and transportation costs.

When she heard nothing back after repeated requests, she went to small-claims court, only to learn that their contract required such disagreements to be resolved by arbitration. Then came the parents’ own lawsuit, which raised a number of other issues.

It alleges partly that the surrogate failed to keep them abreast of the fetus’s health, put the baby’s health at risk by negligent behaviour and “failing to follow the (parents’) direction regarding decisions affecting the fetus’s medical care.”

The suit also charges she violated their confidentiality and caused serious emotional distress, with one of the parents unable to work from July 2, 2024 – when the woman said she would not have an abortion – until September 2025.

She said in the interview that she was in fact scrupulous about keeping the parents informed on the fetus’s health, never did anything to endanger the unborn child and kept the couple’s identities out of any outside communication about the pregnancy.