The National Post
October 6th, 2010
"Couple Urged Surrogate to Abort Fetus Due to Defect"
By Tom Blackwell

When a B.C. couple discovered that the fetus their surrogate mother was carrying was likely to be born with Down syndrome, they wanted an abortion. The surrogate, however, was determined to take the pregnancy to term, sparking a disagreement that has raised thorny questions about the increasingly common arrangements.

Under the agreement the trio signed, the surrogate’s choice would mean absolving the couple of any responsibility for raising the child, the treating doctor told a recent fertility-medicine conference.

Dr. Ken Seethram, revealing the unusual situation for the first time, said it raises questions about whether government oversight of contracts between mothers and “commissioning” parents is needed.

A bioethicist who has studied the issue extensively argues that contract law should not apply to the transaction, unless human life is to be treated like widgets in a factory.

“Should the rules of commerce apply to the creation of children? No, because children get hurt,” said Juliet Guichon of the University of Calgary. “It’s kind of like stopping the production line: ‘Oh, oh, there’s a flaw.’ It makes sense in a production scenario, but in reproduction it’s a lot more problematic.”

Prof. Guichon speculated that courts likely would not honour a surrogacy contract, drawing instead on family law that would require the biological parents to support the child.

It appears no surrogacy contract has actually been contested in a Canadian court, however, leaving the transactions in some legal limbo.

Dr. Seethram’s presentation to the Canadian Society of Fertility and Andrology conference suggested the accord signed by the three in B.C. may have undermined the surrogate’s right to make decisions in a “non-coercive” environment.

The surrogate, a mother of two children of her own, eventually chose to have the abortion, partly because of her own family obligations.

A former surrogate who helps parents and mothers make such arrangements said the parties should agree on what they would do if defects are discovered during pregnancy, ensuring they have the same views on abortion. If a dispute still arises, however, parents ought to be protected, said Sally Rhoads of

“The baby that’s being carried is their baby. It’s usually their genetic offspring,” she said. “Why should the intended parents be forced to raise a child they didn’t want? It’s not fair.”

In some U.S. jurisdictions, in fact, parents can even sue a surrogate to recoup their payments if the woman insists on going ahead with a pregnancy against their wishes, Ms. Rhoads said.

Disputes are rare here, but she said it is usually surrogates who end up feeling most aggrieved. She recalled one case where the mother conceived twins, the parents asked for a procedure to reduce the number of fetuses to one, and the whole pregnancy was inadvertently lost.

In three other Canadian cases, surrogates are now raising the babies after the commissioning couples got divorced and backed out, Ms. Rhoads said.

The conference presentation disclosed no names or other personal details on the B.C. case, but Dr. Seethram said it occurred within the past year.

The surrogate was implanted with an embryo created with the parents’ egg and sperm. An ultrasound during the first trimester showed the fetus was likely to have trisomy 21, the genetic abnormality that leads to Down syndrome. A further test confirmed the diagnosis.

The couple and the surrogate always got along and their disagreement on what to do never became acrimonious or tense, Dr. Seethram said. But the physician with Pacific Centre for Reproductive Medicine said it appeared to him that the three had never seriously considered such a scenario before the pregnancy.

“They were certainly quite shocked,” he said. “Obviously, [the parents] had come on a long journey before commissioning the surrogacy, [but] all they were thinking about was success.”

It is an issue of growing importance. While there appear to be no national statistics, experts in the field say that surrogacy arrangements are becoming increasingly commonplace in Canada.

Larry Kahn, a Vancouver lawyer who specializes in assisted-reproduction and adoption law, said he has arranged more than 35 surrogacy contracts in each of the past three years, up from barely 15 a decade ago.

He said the surrogate is always represented by her own lawyer, but the contracts usually absolve the parents of responsibility when a defect is found and the surrogate refuses an abortion. He said he knows of no disputes involving any of his clients, though he acknowledged that it is possible the courts would not recognize the contract if a legal battle did ensue.

Dr. Seethram said he believes that the federal government will eventually pass regulations to address the situation, but Mr. Kahn said he doubts Ottawa will get involved.

Françoise Baylis, a Dalhousie University bioethicist, said the case highlights how human life can become like a commodity in such transactions.

“The child is seen by the commissioning parents as a product, and in this case a substandard product because of a genetic condition,” Prof. Baylis said.
July 18th, 2007
"Rent a Mum"
By Bernadette Calonego

Many infertile couples look for surrogate mothers - and find them in Canada. Because surrogacy arrangements are more common desperate couples offer a lot of money. But it is forbidden to pay fees to Canadian surrogate mothers.

They journey from France and Australia, from Germany, Great Britain and Saudi Arabia. They look for a surrogate mother - and they find them in Canada. In the past five years the number of foreign customers doubled itself more than, says the owner of an agency in Toronto, which matches surrogate mothers. Also in the fertility clinic Life Quest Centre in Toronto this is confirmed.

Contrary to most European countries Canada permits surrogacy arrangements. In the United States this affair is big "business", says attorney Sherry Levitan, who helps couples with contracts with surrogate mothers. In Canada surrogacy is more widely accepted, and different from the USA the surrogacy pregnancy and birth is covered by provincial health insurance. That makes the country at first sight a low-priced destination for infertile couples.

A law from the year 2004 forbids payment to Canadian surrogate mothers however it allows that only expenses be paid to them. The Canadian health authorities did not specify so far however yet clearly, what could be meant exactly with "expenses".

The restriction, then critics criticize, would cause infertile couples to pay surrogate mothers secretly. Thus the involved ones risk a term of imprisonment of up to ten years or a penalty up to 350,000 euro ($500,000CAD). This law almost drives infertile couples and surrogate mothers into the unlawfulness, say the critics.

On the question, why at all without remuneration would women want to be surrogate mothers, Canadian attorney Sherry Levitan answers: "Some women enjoy being pregnant more than others". Sally Rhoads, a former surrogate mother, that maintains a web page, reports that she receives still a great many emails inquiring from foreign countries. She says, infertile couples are offering money to Canadian surrogates and it gives ways to go around the law approximately by verbal arrangements. Measure Rhoads finds therefore, the government must absolutely permit the payment to surrogate mothers.

Until the legal conditions are clarified in Canada, and it's experts are united, infertile couples should be very careful and consult with lawyers in every detail before deciding to proceed.