When a Surrogate Refuses an Abortion: What a Tragic U.S. Case Can Teach Us About Surrogacy in Canada

A recent surrogacy case in the United States is tragic on just about every level. It is also a case that intended parents, surrogates and the professionals who work with them can learn from.

According to reporting on the case, a surrogate was carrying a child for intended parents when, at around 20 weeks, the baby was diagnosed with hypoplastic left heart syndrome, a serious congenital heart defect. The intended parents wanted the pregnancy terminated. The surrogate did not.

What followed was an extraordinary breakdown in the relationship. The surrogate continued the pregnancy and travelled to Texas to give birth. The baby required significant medical treatment after birth, including open-heart surgery. The dispute continued after delivery, including litigation over parentage and who should have a say in the baby's medical care. The surrogate and intended parents even referred to the baby by different names.

I don't practise surrogacy law in the United States, so I won't attempt to analyze the American law. But I have spent many years drafting and reviewing surrogacy agreements in Ontario. Reading this story, I kept thinking about what Canadian intended parents and surrogates can learn from it.

Unfortunately, there is no contract that can guarantee this could never happen here.

There are, however, things we can do to reduce the risk.

“Would you terminate?” isn't really a yes-or-no question

One of the most important parts of the surrogacy process happens before a pregnancy exists: counselling.

In Ontario, most surrogacy arrangements I see are gestational surrogacies. That means the surrogate is not genetically related to the child. Traditional surrogacy—where the surrogate also provides the egg—is legal in Canada, but it raises additional legal and emotional considerations. Some fertility clinics will not participate in traditional surrogacy arrangements, and some lawyers will not draft these agreements.

In a typical clinic-assisted surrogacy journey, the surrogate and intended parents will also undergo counselling. Although counselling is not required by law, fertility clinics commonly require it.

This should never be a rubber-stamping exercise.

One of the most important conversations to have is about termination of pregnancy. It is easy to ask a surrogate, “Would you terminate if there were a serious problem with the baby?”

The problem is that people's actual views are often much more nuanced.

Would the answer be different for Down syndrome than for a condition associated with a very short life expectancy? Does gestational age matter? Would someone who would terminate at 12 weeks feel differently at 20 or 25 weeks? What if the prognosis is uncertain? What if continuing the pregnancy creates a significant risk to the surrogate's health?

People's views can have many shades of grey.

That is why I would rather see people have more detailed conversations, not less.

If the parties realize they don't know how they would approach particular diagnoses, they may want additional information or even to speak with a genetic counsellor. The goal isn't to predict every possible medical complication. That's impossible. The goal is to understand each other's values well enough to know whether this is actually a good match.

If a surrogate says, “I think I would follow your wishes, but I'm not sure I could terminate at 20 weeks,” that is important information.

It may mean the parties aren't a good match. Or the intended parents may decide that they are comfortable proceeding despite that uncertainty.

Either is better than discovering the disagreement for the first time in the middle of a medical crisis.

Can intended parents require a surrogate to have an abortion?

No. At least not in Ontario.

This is one of the most important things intended parents need to understand about surrogacy.

Most surrogacy agreements I review contain fairly similar provisions about termination. Typically, the surrogate acknowledges that she has the right to make decisions concerning her own body, while the agreement also records the parties' intentions about circumstances in which termination might be considered.

Often, a surrogate intends to be deferential to the intended parents where a serious fetal abnormality is diagnosed. Agreements also commonly address circumstances where continuing the pregnancy threatens the surrogate's own health or life. But a surrogacy agreement cannot eliminate bodily autonomy.

Ontario's Children's Law Reform Act expressly provides that a surrogacy agreement is unenforceable in law, although it may be used as evidence of the parties' intentions regarding parentage.

More fundamentally, a surrogate is the person receiving medical treatment during the pregnancy. Intended parents cannot use a contract to compel her to undergo an abortion.

That means there is an unavoidable element of risk for intended parents.

An intended parent may receive devastating medical information and decide, just as someone carrying their own pregnancy might decide, that they do not want to continue the pregnancy. But in a surrogacy arrangement, the pregnancy is occurring in somebody else's body.

To some extent, control over what happens during that pregnancy has been surrendered.

That can be extraordinarily difficult to accept, particularly when the intended parents know that they may ultimately be raising a child with very significant medical needs.

There is no clever contract clause that makes this risk disappear.

That is why being on the same page with your surrogate before the pregnancy begins is so important.

Surrogacy counselling should not be a rubber stamp

Most fertility clinics have processes designed to make sure intended parents and surrogates receive appropriate counselling before proceeding. Counsellors may meet with the parties separately and together.

That process needs to be meaningful. Everyone should understand what counselling is actually for.

The objective shouldn't simply be to obtain a letter saying everyone is ready to proceed. It should be to uncover potential areas of disagreement while there is still time to do something about them.

Who makes medical decisions for a surrogate-born baby after birth?

Another part of the American case caught my attention. Based on the reporting, it appears that the surrogate wanted some involvement in decisions concerning the baby's medical treatment after he was born.

It isn't entirely clear from the reporting exactly how she conceptualized her role or what parental rights she believed she had. I would be cautious about drawing conclusions from media reports alone.

But the dispute illustrates another issue surrogacy agreements should address: Who makes medical decisions for the baby immediately after birth?

This can matter enormously if a baby is born requiring urgent medical treatment.

Ontario law specifically addresses parental rights and responsibilities during the first seven days after a surrogate birth. Where the requirements in section 10 of the Children's Law Reform Act are satisfied, the surrogate and intended parent or parents ordinarily share parental rights and responsibilities during this period unless the surrogacy agreement provides otherwise. A properly drafted Ontario surrogacy agreement should address who will exercise parental rights and responsibilities during this post-birth period.

Imagine a newborn requiring emergency surgery, intensive care or another major treatment decision within hours of birth. That is a terrible time for the surrogate, intended parents and hospital to discover that nobody adequately addressed who was supposed to make decisions.

This is also a good example of why surrogacy agreements should be drafted and reviewed by lawyers who actually practise in this area. Surrogacy and parentage laws vary between jurisdictions, and they change. A contract copied from another province, another country or an old precedent may not adequately address the law that applies to the particular journey.

The problem no surrogacy agreement can completely solve

There is another reality about fertility law that lawyers can't draft away.

We ask people to predict the future.

A surrogate may genuinely believe she would terminate a pregnancy following a particular diagnosis. But answering that question before pregnancy and answering it when you are 20 weeks pregnant are very different things.

Likewise, intended parents may believe they know what they would do following a serious prenatal diagnosis. When the hypothetical diagnosis becomes their child's diagnosis, they may feel differently.

That doesn't necessarily mean anyone was dishonest when they signed the agreement.

People can change their minds without ever having intended to change their minds.

Surrogacy agreements are filled with decisions about hypothetical future events. Good legal advice helps people think through those possibilities. Good counselling helps them explore how they might feel about them.

Neither can guarantee how a human being will actually respond when something devastating happens.

Build support into the surrogacy agreement

Because these situations can be emotionally enormous, intended parents and surrogates should also think about counselling during the journey, not just before it.

Surrogacy agreements commonly provide some funding for counselling for the surrogate. It is worth considering whether the amount is actually sufficient if something difficult happens.

A surrogate dealing with a serious fetal diagnosis may need professional support while deciding what she wants to do. She may also need support living with the decision afterward.

The intended parents may need their own counselling.

Nobody expects to need this support when they start a surrogacy journey. That is precisely why it makes sense to discuss it in advance.

Good surrogacy relationships depend on communication

When I speak with clients who have gone through successful surrogacy journeys—particularly people who have done it more than once—I often ask what made the relationship work.

One answer comes up again and again: Communication.

It sounds simple. It isn't.

Even in Canada, where paying a surrogate for her services is prohibited, the relationship can sometimes start to feel transactional. Intended parents may think: We discussed this. It's in the contract. This is what we agreed would happen.

But a surrogate isn't a service provider carrying out instructions. Nor are intended parents mind readers.

When people become uncomfortable and start tiptoeing around difficult subjects, misunderstandings can grow. Small disagreements can escalate because each side begins interpreting the other's behaviour rather than simply asking what is going on.

Good communication doesn't mean avoiding difficult conversations. Often it means the opposite.

Be direct. Be kind. Say the uncomfortable thing.

“I don't know how I would feel about terminating that late in pregnancy” is more useful than offering reassurance you aren't sure you can honour.

“I would have great difficulty parenting a child with that particular diagnosis” is also something an intended parent should be able to say before entering the arrangement.

The purpose isn't to eliminate uncertainty. It is to make sure nobody is blindsided by uncertainty that could have been identified months earlier.

What can Canadian intended parents and surrogates learn from this case?

I don't think the lesson from this tragic case is that surrogacy doesn't work.

Nor do I think the lesson is simply that everyone needs a better contract.

The lesson is that surrogacy involves something contracts aren't particularly good at controlling: human beings dealing with circumstances they hoped would never happen.

Good contracts matter. Experienced legal advice matters. Meaningful counselling matters. Careful matching matters.

But the people entering a surrogacy arrangement also need to understand its inherent limits.

Intended parents are entrusting someone else with a pregnancy involving their future child. A surrogate is agreeing to carry a child she intends someone else to parent. Both are making commitments about circumstances they cannot fully predict.

There will always be some uncertainty in that.

The goal of a good surrogacy process isn't to pretend that uncertainty doesn't exist. It is to identify as much of it as possible before pregnancy, make sure everyone understands the legal limits of the arrangement, put appropriate supports in place, and create a relationship in which people can have difficult conversations before they become crises.

Sometimes the most valuable thing a surrogate can say isn't “I promise.”

It's “I don't know.”

And sometimes asking what comes after that answer is the most important part of the entire process.

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Frequently Asked Questions

Can a surrogate refuse an abortion in Ontario?

Yes. A surrogate retains control over medical decisions involving her own body. A surrogacy agreement can document what the parties intend to do if a serious fetal abnormality or other medical issue arises, but it cannot be used to force a surrogate to undergo an abortion.

Are surrogacy agreements enforceable in Ontario?

Ontario's Children's Law Reform Act provides that a surrogacy agreement is unenforceable in law. However, the agreement can be used as evidence of the intended parents' intention to be parents and the surrogate's intention not to be a parent. The legislation also gives the agreement an important role in determining parental rights and responsibilities immediately after birth.

Who makes medical decisions for a baby born through surrogacy in Ontario?

Under section 10 of Ontario's Children's Law Reform Act, the surrogate and intended parent or parents ordinarily share parental rights and responsibilities for the first seven days after birth, unless the surrogacy agreement provides otherwise. This is one reason an Ontario surrogacy agreement should specifically address decision-making immediately after birth.

Should intended parents and surrogates discuss abortion before pregnancy?

Yes. In my view, this should be a detailed conversation rather than a simple yes-or-no question. The parties should consider how their views might differ depending on the diagnosis, prognosis, gestational age and risks to the surrogate. Meaningful counselling before pregnancy can help identify significant differences before the parties proceed.

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