In a shocking case which echoes Margaret Atwood's The Handmaid's Tale, a British Columbia mother is suing a couple who claim parental rights over her four year old daughter under a surrogacy contract.
The mother, identified by her initials in the court's ruling, seeks a declaration confirming that she is the girl's mother, despite the parental claims asserted by the couple under a surrogacy contract.
She seeks the declaration on the grounds that she had sexual intercourse with the male who is part of the couple.
The respondent couple consider themselves to be the parents of the little girl due to a surrogacy contract they say the mother entered into with them before the child's birth in May 2017.
Having married in 2009, and wanting to have children, the man found himself unable to successfully inseminate his female partner. When in vitro fertilization failed to enable them to make a child together, the couple met the mother in 2014
The mother, who already had two children for whom she was solely responsible, claims that she and the husband became lovers. She says that, on two occasions prior to the birth of their daughter, she fell pregnant through sexual intercourse with him but sought terminations of those pregnancies.
The mother also became friends with the man's other female partner. According to the ruling, she offered to serve the other woman's relationship with the father by giving them a child under a surrogacy agreement.
BC Supreme Court Justice Warren Milman stated that a surrogacy agreement was entered into.
The couple denied that the mother fell pregnant after sex with the father. They admit that he had a sexual relationship with the mother, but only after the birth of their daughter.
As such it would seem—confusingly—that the father denies paternity of the daughter he has with the mother who brought the claim to court.
"Leaving aside the question of how (the daughter) was conceived, which is for trial, it appears clear from their contemporaneous written communications that the parties understood throughout the pregnancy that (the mother) was carrying the child as a surrogate (italics mine) and that the respondents would be raising the child as their own," said the judge.
After the little girl's birth, she lived with her father and his girlfriend, instead of her mother. Mother and daughter had a relationship for the first two or three years of her life.
The couple say that, as the mother demanded increased access to her daughter, the arrangement they agreed came under strain. When the mother asked for a fixed schedule to see her daughter, the couple refused to allow her access to her own daughter.
The mother applied for a court order to resume contact with her daughter pending trial, but the judge declined to grant contact on the basis that it wasn't in her daughter's best interests.
A two-week trial is scheduled for January 2021, in which the mother will seek to be declared the girl's legal mother. The father and girlfriend will contest the declaration.
It will be interesting to see whether, in the nation that spawned The Handmaid's Tale, the BC court will side with the father who sexually exploited the mother—and his infertile girlfriend who wanted to play the role of a mother at any cost—over the little girl's own mother.
It may be that by invoking the magic, patriarchal, women's rights-erasing word "surrogacy," men can buy what they want from as many women as it requires to construct a menage that looks, on the surface, like a family.
By throwing the veil of the word "surrogacy" over the facts in this case, it may well be that the father can live with his preferred girlfriend, while stealing his daughter from her mother, and cutting the mother out of the picture entirely by flinging some money at her.
The problem for Canadian patriarchy-on-steroids is that the mother-child bond cannot simply be bought off with money, nor severed with court orders.
The very real and strong forces of a mother who wants her daughter, and the daughter who wants her mother, will have to be reckoned with, and respected.
Unless they are utterly oppressed by misogynist laws, marginalized handmaids—like the mother in this case—will inevitably fight back against the extraordinary selfishness and greed of Commander Waterford and his Serena Joy.