Sex, Money, And A Baby: Canadian Judge Rules On Wild Surrogacy Case

The parties entered into a written surrogacy agreement, drawn up by the intended parents but involving no lawyers. But wait! There's more...

If I were attempting to write a crazy law exam fact pattern on surrogacy, this is the one that I would write.

In June 2021, the Supreme Court of British Columbia issued a judgment in the case of K.B. v M.S.B. and N.B.B. Despite the boring name of the case, the court dealt with some very spicy facts.

M.S.B. (husband) and N.B.B. (wife) married in 2009, and had a long struggle with infertility. Their attempts to conceive included trips to India for IVF and surrogacy — back when surrogacy in India was still legally permissible for foreigners. However, all of the couples’ efforts failed.

Then along came K.B. (the surrogate, arguably), a single mother of two kids. She began an affair with the husband and, strangely, also became close friends with the wife. In February 2016, K.B. then offered to become a surrogate for the couple. She traveled with the couple to India, and had an embryo (genetically related to the husband and wife) transferred to her uterus. Unfortunately, that effort was also not successful.

The couple and K.B. then discussed and agreed for K.B. to act as a genetic surrogate (also known as a traditional surrogate), whereby K.B. would donate her eggs to the husband and wife, as well as act as a surrogate. This generally means that the surrogate goes through a medical insemination procedure with the intended father’s or donor sperm.

The parties entered into a written surrogacy agreement, drawn up by the intended parents but involving no lawyers. K.B.’s signature appears on the contract, but despite that, she disputes ever seeing the contract. (Lawyers, I apologize that your eyes are burning from all the red flags.)

Conception By Affair. K.B. successfully conceived a child with the husband’s sperm, and later gave birth to V.N.K.B. (the child). However, how that conception occurred is disputed. The couple claims that it was through an at-home insemination procedure. K.B., however, claims that sure, they tried the at-home process. But she says that once that failed, she and the husband went back to the old-fashioned method (AKA sexual intercourse), and that was how the child was conceived.

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This wasn’t even the first time that the husband and K.B. had conceived together. Previously, K.B. had twice(!) gotten pregnant through sex with the husband, and had obtained an abortion in both of those cases. This pregnancy, of course, she did not terminate, but gave birth to a healthy girl.

After the birth, K.B. signed documents confirming that she was a surrogate, and the husband and wife were the parents of the child that she gave birth to.

Things Go South. For the first few years of the child’s life, the husband, wife, and K.B. kept in touch, and K.B. even saw and interacted frequently with the child. However, the husband and wife explained to the court that the situation became “increasingly strained as K.B. began making progressively greater demands of them. In particular, [she] wanted to formalise a schedule fixing her contact time with [the child] and demanded to be paid $100,000.” The husband and wife represented to the court that they had paid K.B. $40,000, plus tax, for her surrogacy expenses. But K.B. denied that the $40K was for the surrogacy. Instead, she said it was just a gift. She was, after all, sleeping with the husband.

But it wasn’t just the money that caused the ultimate rift in the parties’ relationship. It was K.B. beginning a romantic relationship with someone else, and eventually ending her affair with the husband. The husband and wife have not permitted K.B. to see the child since February 2020.

K.B. brought this action in July 2020 seeking to have the court declare her as this child’s parent and to grant her equal parenting time and responsibilities as well as child support.

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So Many Issues. In case this does become a law school exam question, here is a mini-crib sheet for some of the necessary issue spotting.

  1. Having Sex Never Equals Surrogacy. At least in the United States, all statutes that have addressed surrogacy have required the conception to take place through an assisted reproductive technology procedure, and specifically not through sexual intercourse.
  2. Lack of Counsel. This one is a freebie. Clearly, both parties should have independent legal counsel, as is required by a number of states, including my home state of Colorado’s new surrogacy law.
  3. Compensation. First, there is the complication that in Canada, intended parents are not permitted to compensate a surrogate but only to reimburse expenses. Did the other woman have $100,000 in expenses? Probably not. And in the United States, all compensation terms should be clearly set forth in the legal agreement (that one where all the parties are represented independently and acknowledge not only seeing the agreement, but what it says). Moreover, $100,000 is also super high for U.S. standards. While numbers continue to rise, we are still closer to that $40,000 range.
  4. Mental Health. It is a best practice, as well as required by law in some jurisdictions, to have a surrogate candidate undergo a mental health evaluation or consultation. While I’m no mental health professional, I am guessing one would strongly advise against entering into a surrogate agreement with your secret lover and his trusting wife.

But What Did The Court Say?

The court did not focus on K.B.’s genetic connection and gestational delivery of the child. Instead, the court looked to the fact that K.B. did not currently have, nor ever had, guardianship of the child. Thus K.B. was classified as a nonguardian. Pursuant to applicable law, the standards are high for granting a nonguardian contact or rights that would upset a child’s situation. The court assessed the factors to determine the best interest of the child, and found that K.B.’s request ultimately would not to be in the best interest of the child.

K.B.’s application was rejected. However, it isn’t over. The case is set to go to trial in January 2022, where the parties may present additional spice, er… evidence that could change the landscape yet again.


Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.