Thursday October 13, 2022

The Easy Way is Not the Best Way: Informal Surrogacy Arrangements Can Have Heartbreaking Consequences

Authored by: Terrance G. Sheppard, KC Posted in: Family Law

The Ontario Superior Court of Justice was faced with a regrettable set of circumstances in a recent case, known as Jacobs and Coulombe v. Blair and Amyotte.[1] In her May 2022 decision, the Honourable Justice N. Gregson delivered a compelling summary of her opinion on the case:

To be clear, this is not a case involving a legally-binding Surrogacy Agreement, nor is it an adoption case.  As such, none of the usual safeguards for these types of parenting arrangements were adhered to by the parties. This is a case about everything the parties did wrong to achieve a particular goal, which ultimately led to the demise of a friendship, with a sweet little girl caught in the middle.[2]

While outlining her decision, Justice Gregson highlighted the importance of retaining counsel and executing a legally-binding agreement in these scenarios. In this case, the parties failed to formalize their intentions, which resulted in a lengthy dispute and immense heartache for all involved. Furthermore, a judge, rather than the parties themselves, became responsible for determining who should care for the child who each party had come to love as their own.

Background of the Case

J and C are a same-sex couple who wished to have a child. They began engaging in discussions regarding a surrogacy arrangement with their friends, B and A, which ultimately led to B and A conceiving a child and asking J and C to care for her. 

Prior to B’s pregnancy, the parties had spoken seriously about B carrying a child for the couple, they researched fertility clinics, and B consulted her doctor regarding assisted reproduction. In the process, B became pregnant through intercourse with A, and asked J and C whether they would consider raising the child as their own, though there would be no biological ties. J and C happily agreed, and all parties referred to B as a surrogate throughout her pregnancy.

Following the child’s birth, J and C assumed their role as her parents and she remained in their full-time care. B and A remained active in the child’s life through an informal parenting arrangement, which gave them parenting time. When the child was four months’ old, B and A commenced legal action to have the child placed in their full-time care, claiming the child was biologically theirs and pointing out that there was no formal surrogacy agreement.

Ultimately, the Ontario court decided it was in the child’s best interests to remain in the full-time care of J and C, since they had been acting as her parents for the first 17 months of her life. The judge was hopeful, however, that the parties may be willing to set their differences aside and prioritize their relationships with the child, as her ties to each of them were meaningful.

Takeaway

At the heart of this case is the frustrating reality that the turmoil resulting from the parties’ actions was entirely preventable. Above all, Justice Gregson’s decision highlights the importance of seeking legal advice and ensuring all important life decisions are protected by properly drafted agreements. 

Lawyers at BOYNECLARKE LLP can help you navigate the legal issues of family law. If you are seeking legal advice, please call 902-469-9500 to schedule your free 30-minute consultation with a member of our Family Law team.


[1] Jacobs and Coulombe v Blair and Amyotte, 2022 ONSC 3159.

[2] Ibid, para 6.

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