Couple sues surrogate who saved their baby's life by refusing to abort

A Canadian couple is suing the surrogate who carried their son after she refused an abortion due to the baby's diagnosis of a cleft lip and possible genetic abnormalities.

The case ignites tough questions about the commodification of children in surrogacy and the pressure placed on surrogate mothers to abort preborn babies. 

Key Takeaways:

• A Canadian couple hired a surrogate, and prenatal testing revealed the baby might have a cleft lip and palate, as well as a minor heart defect.

• The couple instructed the surrogate to abort the baby at 22 weeks.

• After the surrogate refused to have an abortion, objecting because it was solely for cosmetic reasons, the couple sued her.

• More prenatal testing revealed the baby did not have genetic issues, and that minor defects could be easily fixed with surgery.

• The couple was eventually convinced to proceed with the pregnancy.

The Details:

An Ontario couple ordered their surrogate to abort their baby at 22 weeks gestation after prenatal testing indicated the child might have a cleft lip and potential genetic issues. 

A letter from the couple to the surrogate read:

“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. Although very difficult, this decision is free and informed.”

In a lawsuit submitted to the Ontario Superior Court this May, the couple alleged the surrogate mother did not sufficiently notify them about the baby’s health, placed the child in danger, inflicted emotional distress, and breached their confidentiality — claims the surrogate strongly rebuffed. 

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The couple filed the lawsuit despite the fact that the surrogate had pushed for additional testing, and the couple ultimately decided to proceed with the pregnancy after specialists ruled that the preborn baby was healthy overall, with only a minor birth defect.

The surrogate mother was unwilling to end the baby’s life solely because of a defect that could potentially be treated with surgery.

Zoom In:

Both the surrogate and the agency director who facilitated the match say the relationship between the surrogate and the couple started to deteriorate following the fallout over the abortion demand.

Accepting the child, but suing for damages

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

Strained relations between the parents and the surrogate appeared to have escalated when she opted to proceed with a home birth, and subsequently filed a small claims case seeking reimbursement for her out-of-pocket costs. Although that dispute has moved to arbitration, the couple has since served the single mother, a corrections officer, with a broader civil lawsuit represented by Faskens, a prominent Bay Street law firm.

Although the lawsuit did not specify an exact amount of damages, the surrogate said the plaintiffs have admitted they are seeking roughly $600,000.

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

"They threw me away"

“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 surrogate mother said. “I just feel used … They didn’t get the perfect child they wanted and they threw me away.” 

The surrogate also insisted that she was diligent in notifying the couple about the health of the preborn baby, did nothing to put the preborn child at risk, and ensured the couple’s identities were not disclosed in any external communications about the pregnancy.

After the birth of the baby, the surrogate maintained that the couple took the baby home and largely ceased contact with her. The surrogate therefore requested a reimbursement of roughly $10,000 in outstanding expenses, including lost income during the pregnancy, missed pension contributions, and transportation costs.

The Big Picture:

Canadian surrogates are in high demand, yet are prohibited by law from charging commercial fees, unlike their counterparts in the United States and certain other countries. Canadian surrogates are limited to reimbursement for documented expenses.

While most become pregnant out of a desire to help others, some end up unpaid or, in some cases, left to take full responsibility for the child if the intended parents back out.

As reported by the National Post, Juliet Guichon, a bioethics professor at the University of Calgary, said the Ontario case emphasizes the ongoing vulnerability of women who carry children for others, usually at personal risk, adding that the parents seem to be penalizing the surrogate for supposedly violating 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. The question arises as to whether it is in the best interests of the child to be raised by these people,” Guichon said.

However, Guichon pointed out that Canadian law clearly reinforces a pregnant woman’s ultimate authority to decide whether to proceed with an abortion, irrespective of the views or wishes of others, including a co-parent.

This is not the first time a surrogacy arrangement has clashed with the abortion demands of intended parents. Similar cases have made headlines in North America before, including Crystal Kelley’s refusal to abort a child with disabilities and other legal battles in which intended parents tried to impose abortion decisions on surrogate mothers.

These stories reveal a troubling trend: when a preborn child’s health condition does not fit the expectations of intended parents, the latter regard the child’s life as disposable. 

The Bottom Line:

Surrogacy contracts can contain abortion clauses or other terms that reduce children to a set of conditions. Yet the reality is that no parent, no contract, and no fertility arrangement should empower one person with the ability to terminate the life of a preborn baby.

This case is a reminder of how vulnerable preborn children can be when adults approach fertility and surrogacy as a marketplace transaction leading to the potential destruction of life. Yet preborn babies born to surrogate mothers should not be treated as abstract “issues” to be managed, but as children whose value does not hinge on genetic perfection.