Canadian same-sex couple sues surrogate who refused abortion of fetus with cleft lip

Source: Maurizio Gambarini/dpa

A woman in Canada helped a same-sex couple have a child through surrogacy. The arrangement ultimately ended up in court following a dispute over a possible abortion of the child, who has a disability.

When the email from the intended parents arrived, the surrogate was traveling. The Canadian woman was devastated: The couple for whom she was carrying a child wanted to end the pregnancy. An examination had found a cleft lip and possibly other minor abnormalities in the unborn boy. The woman refused the abortion.

Two years later, the conflict landed in court. The intended parents sued her, and the payment of a large sum in damages is also at stake.

The case from the Canadian province of Ontario is currently making international headlines because it highlights several societal conflicts: the rights of surrogates, the expectations of intended parents, the role of prenatal diagnostics, and the question of who ultimately gets to decide about such a pregnancy. The legal dispute was first reported by the newspaper National Post; the New York Post and The Sun subsequently picked up the story.

The Conflict Began After an Ultrasound of the Baby

The now two-year-old boy was conceived through surrogacy for a same-sex male couple. Embryos from an egg donation and the sperm of the two intended fathers were used. Initially, the relationship between the parties was apparently positive.

However, the situation changed in June 2024: An ultrasound examination indicated a cleft lip and possibly a cleft palate and a small heart defect. The couple then invoked a clause in the surrogacy contract and informed the woman in writing that they wished to terminate the pregnancy. According to the National Post, the letter stated that the decision was made "freely and informed." The surrogate, however, refused the procedure, which would have had to take place at an advanced stage (22nd week of pregnancy).

In court, she later stated that she would only have considered an abortion if doctors had given the child no realistic chance of survival. A cleft lip, on the other hand, is treatable with surgery. Instead, the woman, who remains anonymous in the article, insisted on further examinations. Specialists in Toronto then concluded that the child – apart from the cleft lip – would likely be largely healthy. The intended parents then accepted the continuation of the pregnancy.

There Was Also a Dispute Over the Place of Birth

The parties also disagreed over the delivery: The surrogate wanted to give birth at home, while the intended parents wanted a hospital delivery, especially given the diagnosed possible complications. Ultimately, both happened: During the home birth, there were complications with the child's breathing, so the mother and infant had to be taken to the hospital.

After the birth, the parents took the infant home and broke off contact with the surrogate. However, the conflicts were not over. Later, the parties argued over the reimbursement of pregnancy-related costs. The surrogate demanded around 10,000 dollars for outstanding costs, loss of earnings, travel expenses, and the unpaid contributions to her pension insurance. When she did not receive this, she contacted an arbitration board.

In contrast to the United States, where compensation for surrogates can exceed 100,000 dollars, in Canada only direct expenses are typically reimbursed.