Gay Couple Sues Surrogate for Refusing to Kill Baby With Cleft Lip in Abortion

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A same-sex couple in Ontario has sued their surrogate mother after she refused to abort their baby diagnosed with a cleft lip, a relatively minor and easily correctable condition with surgery.

The lawsuit, filed in Ontario Superior Court in May, seeks approximately $600,000 in damages. It alleges the surrogate failed to keep the couple informed about the baby’s health, put the child at risk, failed to follow their directions on medical care, violated confidentiality and caused one parent serious emotional distress.

The conflict began in late June 2024 when an ultrasound at about 22 weeks showed the baby had a cleft lip along with possible cleft palate and a minor heart defect. The couple sent the surrogate a letter demanding she kill the baby in an abortion under a clause in their surrogacy agreement.

“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 letter stated. “Although very difficult, this decision is free and informed.”

The surrogate, a single mother and corrections officer in Ontario’s Muskoka region, refused. She insisted on further testing and said she would only consider having an abortion if the baby had no realistic chance of survival. She viewed the cleft lip as largely cosmetic.

Specialists at Mount Sinai Hospital in Toronto later determined the baby was otherwise healthy, with only the minor cleft lip defect that can be addressed through surgery and therapy. The couple agreed to continue the pregnancy.

The relationship soured after the disagreement. The surrogate gave birth at home with midwives as originally agreed, though the couple had wanted a hospital delivery because of the cleft lip.

The newborn baby had temporary breathing difficulties but recovered quickly after receiving oxygen and being transported to the hospital.

After taking their son home, the gay couple cut off contact with the surrogate. She later sought reimbursement for roughly $10,000 in expenses related to the pregnancy. The contract required disputes over expenses to go through arbitration.

The surrogate has denied the couple’s allegations, stating she kept them informed and did nothing to endanger the child.

“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—ty, it’s just awful,” she said. “I just feel used … They didn’t get the perfect child they wanted and they threw me away.”

Sally Rhoads-Heinrich, who owns the agency that arranged the surrogacy, expressed concern over the lawsuit.

“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 some day if he learns that?” she said.

Bioethicist Juliet Guichon noted that the couple had sought to end the baby’s life for a medical condition that can be completely overcome by surgery and therapy. She questioned whether it is in the best interests of the child to be raised by these people.

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