Same-sex couple sues surrogate who refused to abort baby with cleft lip: 'They threw me away'

A same-sex male couple in Canada has sued a surrogate mother who believes she is being punished because she refused a request to abort the baby after doctors detected a cleft lip and a possible heart defect.

In a suit filed in Ontario Superior Court in May, the parents allege the surrogate mother failed to keep them informed about the baby's health, put the baby at risk, caused them emotional distress and violated their confidentiality, The National Post reported.

The outlet, which reviewed the claim but withheld the identities of the mother and the couple, reported that the lawsuit came two years after the couple asked her to terminate the pregnancy at 22 weeks — a request she refused.

The lawsuit does not cite her refusal as a reason for the suit, but the mother and the surrogacy agency both say the relationship with the couple deteriorated after she decided to continue the pregnancy.

"That's when everything changed … they wanted a termination," Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online, told the outlet. "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 had a good relationship with the couple after conceiving via in vitro fertilization, using a donor egg and sperm from each of the intended fathers. But the couple sent a formal letter requesting termination after an ultrasound revealed a cleft lip and the possibility of a cleft palate or minor heart issue.

"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 couple said in their letter. "Although very difficult, this decision is free and informed."

Shocked and "devastated" by the request while she was out of the country, the mother said she would have considered ending the pregnancy only if the baby had no realistic chance of surviving after birth, and pushed for further testing instead. Specialists at Mount Sinai Hospital in Toronto later determined the baby was otherwise healthy, with the cleft lip as the main finding.

The couple accepted this assessment and agreed to continue the pregnancy, though tensions continued over the delivery plans. While the parents wanted a hospital birth in case of complications from the cleft lip, the surrogate decided to have a home birth with midwives in accordance with their original agreement.

The newborn had breathing difficulties at birth but recovered quickly after midwives administered oxygen and arranged ambulance transport to the hospital.

After the parents took the boy home, the surrogate unsuccessfully sought repayment of about $10,000 in out-of-pocket costs tied to the pregnancy, including lost income, missed pension contributions and transportation. She initially filed in small-claims court but learned their contract required disputes to go through arbitration.

The couple also filed a suit for approximately $600,000 in damages against the single mother, alleging she failed "to follow the direction regarding decisions affecting the fetus' medical care." Describing the suit as exploitative, she said the couple appeared to reject the child for not meeting their expectations of perfection.

"You know I'm a single mom, you know I have a daughter, and you're basically suing me for my house. It seems very s—, it's just awful," the mother told The National Post. "I just feel used … They didn't get the perfect child they wanted and they threw me away."

More than 50 countries prohibit both commercial and altruistic surrogacy, with Italy expanding its ban in 2024 to make it a "universal crime" that heavily penalizes citizens who travel abroad for surrogacy. Surrogacy laws vary by state in the United States.

Governments from multiple countries, led by Italy and Chile, launched a political declaration last month calling for an international moratorium on the practice they say exploits women and children worldwide.