‘They didn't get the perfect child’: Gay couple sues surrogate who refused to abort son over cleft lip diagnosis

A same-sex couple in Ontario, Canada, is suing the surrogate mother who carried their son, two years after she refused their request to abort the unborn child following a prenatal diagnosis of a cleft lip, according to a civil suit filed in Ontario Superior Court in May. 

The lawsuit does not specify a dollar amount, but the surrogate mother said the couple has indicated they are seeking about $600,000, the National Post reported.

The dispute traces back to July 2024, when the couple asked the surrogate mother to abort the unborn child at 22 weeks after a late-June ultrasound indicated the fetus had a cleft lip, a possible cleft palate, and a minor heart defect. 

In a letter obtained by the National Post, the couple invoked their surrogacy agreement, writing that they wished "the pregnancy be terminated."

The surrogate mother, an Ontario corrections officer who was in the Dominican Republic when she received the letter, declined. She said she would have agreed to end the pregnancy only if the baby had no chance of survival after birth, and she asked for further testing instead, according to the newspaper.

Doctors at Toronto's Mount Sinai Hospital later determined the baby was healthy aside from the cleft lip, and the couple agreed to let the pregnancy continue, the report said.

The relationship between the couple and the surrogate mother deteriorated afterward, according to Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online, the agency that matched the two parties. 

The surrogate mother said she went on to deliver the baby at home with midwives rather than at a hospital, over the couple's objections. The newborn had breathing problems at delivery that resolved after midwives administered oxygen; the surrogate mother said midwives then called an ambulance to take the baby to the hospital.

After the birth, the couple took the baby home and largely stopped communicating with the surrogate mother, who later sought about $10,000 in reimbursement for pregnancy-related expenses, including lost income and pension contributions, the report said. When the couple did not respond, she filed a small-claims suit, only to learn the surrogacy agreement required the dispute to go to arbitration instead.

The couple then filed their own lawsuit, alleging the surrogate mother failed to keep them informed about the baby's health, put the child at risk, caused them emotional distress, and violated their confidentiality. The suit also alleges she did not follow their direction on medical decisions affecting the unborn child. The surrogate mother has denied the allegations. Jonathan Lancaster, the Toronto-based lawyer representing the couple, declined to comment, according to the newspaper.

The surrogate parent, a single mother, said she felt targeted for refusing the abortion request.

"They didn't get the perfect child they wanted and they threw me away," she told the National Post.

“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. 

Rhoads-Heinrich questioned the couple's decision to sue the woman who carried their child. 

"How is their son going to feel some day if he learns that?" she said.

Commercial surrogacy is illegal in Canada under the federal Assisted Reproduction Act. Juliet Guichon, a bioethics professor at the University of Calgary, told the National Post that surrogates can be reimbursed only for receipted, pregnancy-related expenses, and Canadian law gives a pregnant woman final authority over whether to have an abortion, regardless of what others involved in the pregnancy want.

Lila Rose weighs in 

The case went viral on social media platform X after Lila Rose, founder of the pro-life group Live Action, applauded the surrogate mother for choosing life.

“That child is alive today not because of the men who purchased his life, but because the woman who carried him in her womb protected him,”  she wrote in a post. "Children are not commodities. Ban surrogacy now.” 

Rose followed with a second post featuring video of a cleft lip repair, arguing the condition is completely treatable through surgery after birth. 

“This baby has the same treatable condition that the male couple in Canada wanted their surrogate to abort,” Rose said. 

“The surrogate mother showed heroic love.”