A same-sex couple in Canada has filed a lawsuit against a surrogate mother who refused to abort the baby after doctors detected a cleft lip and a possible heart defect.
Filed in the Ontario Supreme Court in May, the pair is claiming the surrogate did not keep them informed of the baby’s health, which, they argue, put the preborn child at risk, caused them emotional distress, and violated their confidentiality, according to a report from the National Post.
The lawsuit came two years after the couple asked the woman to terminate the pregnancy at 22 weeks, a demand she declined.
Both the mother and the surrogacy agency indicated the relationship between the surrogate and the couple deteriorated after the woman refused to abort the child.
“That’s when everything changed,” said Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online. “They wanted a termination. 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 someday if he learns that?”
The surrogate purportedly had a fine relationship with the couple prior to the abortion dispute. The baby was conceived via in vitro fertilization with a donor egg and sperm from each of the intended fathers. The couple, after learning through an ultrasound about a cleft lip and possible cleft palate or minor heart issue, requested an abortion.
“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,” the gay couple wrote. “Although very difficult, this decision is free and informed.”
The woman said she was “devastated” by the request and admitted she would have considered terminating the pregnancy if the preborn baby was determined by doctors to have no realistic chance of surviving after birth. However, medical personnel at Mount Sinai Hospital in Toronto later determined the baby was otherwise very healthy with the possible cleft lip as the only significant finding.
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Ultimately, the couple accepted the surrogate mother’s suggestion and agreed to move forward with the pregnancy. That, though, was not the end of the friction. The couple wanted a hospital birth over concerns there may be complications from the potential cleft lip. The surrogate, though, moved forward with a home birth monitored by midwives, as stipulated in the original contract.
The newborn did experience difficulty breathing at birth but recovered quickly after midwives administered oxygen and arranged ambulance transportation to the hospital.
After all was said and done, the surrogate mother sought repayment of about $10,000 for out-of-pocket expenses connected to the pregnancy and delivery, including lost income and missed pension contributions. While her complaint was first filed in small-claims court, her contract with the couple stated such disputes must go through arbitration.
At the same time, the couple filed a lawsuit for roughly $600,000 against the mother, a single woman. In their filing, the men claimed the surrogate failed “to follow the direction regarding decisions affecting the fetus’s medical care.” The surrogate said she believes the couple rejected the child for not meeting their expectations.
“You know I’m a single mom, you know I have a daughter, and you’re basically suing me for my house,” she told the Post. “[I]t’s just awful. I just feel used. … They didn’t get the perfect child they wanted and they threw me away.”
