Gay Canadian couple sues surrogate mother for refusing to abort baby over cleft lip, minor defects, and opted for home birth

According to a lawsuit filed in Ontario Superior Court in May and obtained by the National Post, the couple alleges the surrogate failed to properly communicate information about the pregnancy, violated confidentiality, placed the child at risk through her birth plan, and caused them emotional distress. While the filing does not specify damages, the surrogate said the couple has indicated they are seeking approximately CA$600,000.

"You know I'm a single mom, you know I have a daughter, and you're basically suing me for my house," the woman told the National Post. "I just feel used. They didn't get the perfect child they wanted and they threw me away." The surrogate said she was matched with the couple through Surrogacy in Canada Online after deciding to become a surrogate. The pregnancy was achieved through in vitro fertilization using donor eggs and embryos created with the fathers' sperm.

According to the report, the relationship deteriorated in June 2024 after a 22-week ultrasound found the unborn child had a cleft lip, a possible cleft palate and what was described as a minor heart defect. The couple subsequently demanded that the pregnancy be terminated. "Considering that medical tests indicate that the fetus has, or is likely to have, a genetic, chromosomal or other abnormality or defect... we want to inform you of our wish that the pregnancy be terminated," the letter stated.

The surrogate said she would have agreed to an abortion if doctors believed the baby could not survive, but refused to terminate the pregnancy over what she viewed as a treatable condition. Doctors at Mount Sinai Hospital in Toronto later concluded the baby was otherwise healthy and that the cleft lip could be corrected following birth. The pregnancy continued.

The dispute intensified again when the surrogate chose to proceed with a planned home birth attended by midwives rather than delivering in a hospital, as the intended parents had requested. The baby experienced breathing difficulties immediately after birth but recovered after receiving oxygen before being transported to hospital by ambulance.

After taking custody of the baby, the parents ceased contact with the surrogate. She sought outstanding reimbursable expenses and lost wages but when she attempted to recover the money, she learned the contract required arbitration. Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online, told the National Post she found the situation very difficult. "They are suing the woman who brought their son to them," she said. "How is their son going to feel some day if he learns that?" Juliet Guichon, a bioethics professor at the University of Calgary, agreed. "They earlier sought to end the fetus's life for a medical condition that can be completely overcome by surgery and therapy," Guichon told the post, before questioning whether "it is in the best interests of the child to be raised by these people."

Unlike the United States, where commercial surrogates may receive six-figure compensation, Canadian law generally permits reimbursement only for documented pregnancy-related expenses rather than direct payment for carrying a child.