Couple sues Ontario surrogate mother who refused to abort fetus

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

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

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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.

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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.

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“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.”

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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.”

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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.

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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.”

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“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.”

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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.

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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.

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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?” Photo by Courtesy Sally Rhoads-Heinrich

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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.

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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.