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Thursday September 9, 2021

Surrogacy dispute highlights the importance of having a written agreement and independent legal advice

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

In June 2021, The Supreme Court of British Columbia made a decision in the case of K.B v. M.S.B.; a surrogacy dispute that had some particularly racy facts.1

In this case, a husband and wife who were married in 2009 had been struggling with infertility for years. Despite their persistent attempts, they were unable to conceive.

In 2014, the couple met a woman referred to as K.B., who claimed that she befriended both the husband and wife, and that her relationship with the husband swiftly blossomed into a sexual affair. She claimed that as a result of this affair, she became pregnant on two different occasions, but had both of those pregnancies terminated. Despite the affair, K.B. claimed that she “wanted to support their marriage”, and to that end she offered to serve as a surrogate so that the couple could have a child of their own.

The couple produced a written surrogacy agreement dated June 15, 2016. This agreement was prepared without the benefit of independent legal advice. The couple claimed they prepared and signed this agreement together with K.B. However, despite the signature on this agreement purporting to be hers, K.B. later denied having ever seen the document before.

After multiple unsuccessful attempts at implanting a frozen Embryo inside of K.B.’s womb, she eventually became pregnant. However, the circumstances surrounding her pregnancy are in dispute.

The couple claimed that the pregnancy was a result of an at-home artificial insemination procedure. K.B. agreed that they tried artificial insemination. However, she claimed that those attempts failed and that she became pregnant naturally as a result of her sexual relationship with the husband, as had happened twice before. She also claimed that the husband had told her “he would leave [his current wife] and they would raise the child together as husband and wife”. The husband denied these claims, saying the affair turned sexual only after K.B. had become pregnant with the surrogate child.

Following her pregnancy, K.B. gave birth to a healthy baby girl. She then signed notarized documents acknowledging that the husband and wife were the parents of the child, that she became pregnant through an at-home insemination kit, and that she acted as a surrogate.  

K.B. continued to see and spend time with the child over her first two years, however her relationship with the couple became increasingly strained. The couple claimed that K.B. began making increasingly greater demands of them. These included demands for a formalized contact schedule with the child as well as a $100,000 payment. This came despite K.B. already having received $40,000 plus tax from the couple. The couple claimed this was compensation for surrogacy expenses, but K.B. contends that it was a gift given to her by the husband as a result of their sexual affair.

The affair between K.B. and the husband eventually soured, and the couple denied K.B. any access to the child since February 2020.  In July 2020, K.B. brought legal action against them. Through this action she is seeking equal parenting time, equal decision-making responsibilities, joint guardianship, and child support.

Although K.B.’s initial application was rejected, the case is now scheduled for a 14-day trial in January 2022.

This case is a perfect example of why it is so important for both parties to have independent legal advice and a written agreement in place before entering any surrogacy relationships.

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 K.B v. M.S.B., 2021 BCSC 1283

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