Surrogacy Law: Who Keeps The Baby When Something Goes Wrong?

The lines of ‘ownership’ were definitely blurred this week after it was revealed that a B.C. couple urged their surrogate to abort the baby she was carrying for them due to a detected defect and she refused.

According to The Vancouver Sun, the three signed an agreement, absolving the couple from their responsibilities if the baby had issues and the surrogate refused to abort. In this case, the baby was believed to have Down’s Syndrome and the surrogate was against termination. At that point the “commissioning” parents walked away, leaving the mom of 2 to re-evaluate her family goals. Sadly, she was forced to end the pregnancy because she was not able to support another child. 

Dr. Ken Seethram, a Gynecologist in B.C. spoke about the unusual situation for the first time during a presentation to the Canadian Society of Fertility and Andrology conference, saying it raises questions about whether government oversight of contracts between mothers and “commissioning” parents is needed. 

It appears no surrogacy contract has actually been contested in a Canadian court, however, leaving the transactions in some legal limbo. 

In some U.S. jurisdictions, parents can sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Sally Rhoads of Surrogacy In Canada Online said.

Sally is a former surrogate who helps parents and mothers make arrangements believes that parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. 

If a dispute still arises, however, parents ought to be protected,

“The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”

But sometimes, she points out, surrogates are left holding the bag – or baby. In three other Canadian cases, surrogates are now raising the babies after the commissioning couples got divorced and backed out. 

During the conference presentation Dr. Seethram didn’t disclose names or other personal details on the B.C. case, but just said it had occurred within the past year. 

The surrogate was implanted with an embryo created with the parents’ egg and sperm. An ultrasound during the first trimester showed the fetus was likely to have trisomy 21, the genetic abnormality that leads to Down syndrome. A further test confirmed the diagnosis. 

Vancouver Lawyer Larry Kahn, who specializes in assisted-reproduction and adoption law, said he has arranged more than 35 surrogacy contracts in each of the past three years, up from barely 15 a decade ago.

He said the surrogate is always represented by her own lawyer, but the contracts usually absolve the parents of responsibility when a defect is found and the surrogate refuses an abortion. He said he knows of no disputes involving any of his clients, though he acknowledged that it is possible the courts would not recognize the contract if a legal battle did ensue.

Dr. Seethram said he believes that the federal government will eventually pass regulations to address the situation, but Kahn said he doubts Ottawa will get involved. 

I personally believe that parents who are looking to have a baby by a surrogate need to understand that like parenthood, pregnancies aren’t always perfect.  Babies are born early and end up with complications and some are born with special needs.  Do you want to be a parents or do you just want a baby if it’s perfect? Something could happen when the child is older that cause it to have a special need, does that mean you just leave them at the hospital and walk away?  Either you’re in this or you aren’t.  That should be the Law. Because that is the law of life.  You don’t just get to walk away when things get tough.  

And I can say this because my son was born at 24 weeks and he has needed YEARS of therapy to allow him to meet his goals.  Did we walk away?   No, we found new therapists and new ways to help him and it has made me a better person AND a better mother.   – Lisa, Editor

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About the author

Lisa Arneill

Mom of 2 boys and founder of and World Traveled Family. When I'm not running around after my boys, I'm looking for our next vacation spot!

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