An Ontario same-sex couple is suing the surrogate mother who carried their son, two years after she refused their request to abort the baby when a prenatal ultrasound showed a cleft lip.
The lawsuit, filed in Ontario Superior Court in May 2026, does not mention the abortion request. But the surrogate and the agency that matched them both say the relationship fell apart the moment she decided to continue the pregnancy.
The National Post, which reviewed the statement of claim and interviewed the woman, withheld the names of all parties to protect the privacy of the child. The couple's lawyer declined to comment.
How it started
The woman, a single mother and corrections officer in Ontario's Muskoka region, matched with the couple through Surrogacy in Canada Online. She told the paper she got into surrogacy after watching friends struggle to get pregnant, and that about 50 families contacted her before she picked this couple.
The pregnancy was conceived through IVF using a donor egg and sperm from both men. The first months, she said, were fine.
The ultrasound and the letter
In late June 2024, an ultrasound at about 22 weeks showed a cleft lip, a possible cleft palate, and a minor heart defect. The surrogate was in the Dominican Republic, officiating a wrestling event, when the couple's letter arrived.
The letter cited article 8.5(a) of their surrogacy agreement and said medical tests indicated the fetus had, or was likely to have, a genetic, chromosomal, or other abnormality. It stated the couple's wish that the pregnancy be terminated, calling the decision difficult, free, and informed.
Her side
She told the paper she was devastated. She said she would have agreed to an abortion if the baby had no chance of survival — but she would not end a 22-week pregnancy over what she saw as a largely cosmetic defect. She asked for more testing instead.
Doctors at Mount Sinai Hospital in Toronto later concluded the baby had no problems beyond the cleft lip and was generally healthy. The couple then agreed the pregnancy should continue.
She kept her original plan of a home birth with midwives; the parents wanted a hospital delivery because of the cleft. At birth the baby had breathing trouble, the midwives gave him oxygen, and an ambulance took him to hospital. He recovered.
She says the parents took their son home and mostly cut her off. She asked for about $10,000 in unpaid expenses — lost income, missed pension contributions, transportation. After getting no answer, she filed in small claims court, then learned the contract required arbitration.
Then their lawsuit arrived.
She denies every allegation in it: she says she kept the couple informed, never endangered the baby, and did not breach confidentiality. "You know I'm a single mom, you know I have a daughter, and you're basically suing me for my house," she told the paper. "I just feel used. They didn't get the perfect child they wanted and they threw me away."
Their side, from the court filing
The May 2026 statement of claim makes no mention of the abortion request. It alleges the surrogate failed to keep the couple informed about the baby's health, put the child at risk through negligent behaviour, and failed to follow their direction on decisions affecting the fetus's medical care. It also alleges she violated confidentiality and caused serious emotional distress.
According to the filing, one parent could not work from July 2, 2024 — the day she said she would not have the abortion — until September 2025. The surrogate says the couple is seeking about $600,000. Their firm is Fasken. The expenses dispute is in arbitration; the civil suit is separate.
The agency's view
Sally Rhoads-Heinrich, owner of Surrogacy in Canada Online, told the paper the relationship changed when the couple asked for termination. "How is their son going to feel someday if he learns that?" she said of the lawsuit against the woman who carried him.
What the law says
Under Canadian law, the pregnant woman alone decides whether to have an abortion — a surrogacy contract cannot force it. And in Canada, a surrogate cannot be paid a fee for carrying a child, only reimbursed for receipted expenses.
All allegations in the couple's claim are unproven in court.