Court Refuses to Allow Surrogate’s Request for Contact With Child She Gave Birth To

Mark Feigenbaum

In a recent British Columbia case, the court refused to allow a surrogate to have interim contact with the child she gave birth to.

Parties Enter Into Surrogacy Agreement

A British Columbia man and woman married in 2009. They attempted to have a child during the first ten years of their marriage, but were unable to conceive. 

In 2014, the surrogate, who was a single mother of two, met the husband. 

The surrogate and the husband became friends and then lovers. The surrogate also became friends with the wife. During this time, the surrogate became aware of the couple’s fertility struggles and, in February 2016, she offered to serve as a surrogate so that the respondents could have a child of their own. The couple agreed and the parties entered into a surrogacy arrangement. 

Parties Dispute Method of Conception

The couple claimed that the agreement was for the surrogate to donate her eggs and carry the child. They also submitted that the parties had entered into a written surrogacy agreement dated June 15, 2016, although the surrogate claimed to have never seen the document. 

Despite the couple’s claims and the written agreement, however, the surrogate claimed that the husband suggested that he impregnate her via sexual intercourse. She further claimed that the husband promised that they would raise the child together and he would leave the wife. She claimed that she agreed to the husband’s plan and, within two weeks, she became pregnant.

In response, the couple denied that the surrogate became pregnant through sexual intercourse. 

The couple paid the surrogate $40,000 for the surrogacy in November 2017, although the surrogate claimed it was a gift.

Surrogate Seeks Parenting Rights

The child was born in early May 2017. At the hospital, the surrogate signed a document allowing the child to be released to go home with the husband and wife. She also later signed a statutory declaration agreeing that she was not the child’s parent and surrendering her rights to the couple.

Nonetheless, the surrogate was involved in the child’s life for the first two years after the birth, seeing the child five or six times a week. However, the parties’ relationship became increasingly strained and the couple stopped letting the surrogate see the child in February 2020.

In 2020, the surrogate applied for an order under s. 59 of the Family Law Act (“FLA”), allowing her to resume contact with the child, who is now four years old. She also sought, among other things, to be declared the child’s parent and to be granted equal parenting time and responsibilities, joint guardianship and child support. She submitted that because the child was conceived by means of sexual intercourse with the husband, she was the child’s parent notwithstanding the surrogacy agreement.

The main action was set for trial in January 2022. Thus, the court had to determine whether the surrogate was entitled to resume interim contact with the child prior to trial.

Court Refuses to Allow Contact 

At the outset, the court stated that its determination would turn on the best interests of the child. It then noted:

“It is not surprising, given the highly unusual facts of this case, that there is no comparable precedent driving me to any particular result on this issue. Each case is, in any event, unique and must be decided on its own facts.”

After reviewing the facts of the case and the applicable legal framework, the court concluded:

“What is clear to me is that a four-year-old child needs stability. That is yet another important factor weighing against the application. The [husband and the wife] are the only parents that [the child] has ever known. She appears to be well-settled in her family as it is now. Although … it may sometimes be appropriate to order that a biological parent have contact with their adopted child, …such an order will be appropriate “when the child is ready to learn this information”. In this case, I am not persuaded that [the child] will be ready any time soon to learn of her connection to [the surrogate]….”

In the result, the court therefore held that the surrogate had not shown that it would be in the child’s best interests to order contact. It therefore dismissed the application. 

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At Feigenbaum Law, our goal is to help you move forward following the breakdown of a relationship while retaining as much financial stability as possible and ensuring your children are provided for. Mark Feigenbaum is able to counsel his clients on all potential risks that may result from a family law dispute, not just those related strictly to the breakdown of a marriage. Contact Mark online or call him at (416) 777-8433 or toll-free at (877) 275-4792 to book a consultation.