Surrogacy Dilemma: Can Your Surrogate Get Parenting Time With the Child They Helped Bear?

Can your surrogate get parenting time with the child they helped bear? This is the question the BC Supreme Court recently faced in KB v MSB, 2021 BSCS 1238.

The parties’ relationship history: MSB, NBB & KB

The relationship between the parties involved is messy and unusual. MSB and NBB are a married couple and they had been having difficulties conceiving a child. KB met the couple in 2014 and shortly after meeting, KB and MSB became lovers. Despite the affair, KB also became friends with NBB, the wife. In 2016, KB offered to serve as a surrogate for MSB and NBB.

Initially, the parties tried implanting one of NBB’s frozen embryos into KB, but the pregnancy attempt was unsuccessful. After the failed attempt, KB offered to use her own eggs. The parties agreed via a written surrogacy agreement that MSB and NBB are the intended parents. KB became pregnant with her own egg and MSB’s sperm.

After the child was born

A few weeks after the child was born, KB signed off on official documents confirming that she had surrendered the child along with all parental rights to MSB and NBB, the intended parents. The agreement allowed KB to see the child anytime and stated that MSB and NBB would not refuse KB access to the child.

For the first two years of the child’s life the parties had a working relationship and KB was able to see the child regularly. Things took a turn for the worse when KB started to make greater demands of the parents. MSB and NBB then refused access to the child and KB has not seen the child since February 2020.

KB applied for a contact order to see the child on the interim, while she is fighting to be declared the child’s parent at trial.

Best interests of the child

Section 37(1) of the Family Law Act states that the court must consider the best interests of the child only, when making a contact order. Section 37(2) of the Family Law Act sets out considerations the court must consider in determining what is in the best interest of a child. The court must consider all the child’s needs and circumstances including the child’s health, emotional well-being, the history of the child’s care, the nature and strength of the relationship between the child and the significant person in the child’s life, the child’s need for stability, and the appropriateness of an arrangement that would require the child’s guardians to cooperate on issues affecting the child, to name a few of the factors.

The onus is upon the person applying for the contact order to prove that the proposed access is in the child’s best interests.

Considerations for the best interest of the child

Even though there was a written agreement that KB will have contact with the child, the parents had the right to vary the agreement and they could not be faulted for doing so when they believed it was in the child’s best interest to stop the contact. The courts are generally reluctant to interfere with a parent’s decision. The courts will give weight to a parent’s view and their reasons for opposing contact. However, a poor relationship between the parents and the surrogate does not automatically mean that it is against the child’s best interest to have contact.

The BC Supreme Court acknowledged that there are situations where a child would want to have a relationship with their biological parent(s). If the child was at a place where they are ready to learn information about their biological parent(s), then a contact order would be appropriate, despite a difficult relationship between the parents and the other party. This was not the case here, the child was four years old and was not at a place where she would be ready anytime soon to learn of her connection to KB.

On these facts, the Court held that forcing the parties to cooperate so that KB could see the child would be difficult and potentially harmful to the child in light of the parties’ history and present litigation positions and acrimony. The Court went on to consider the child’s age and her need for stability. Weighing the benefits of having KB see the child as opposed to not see the child, the Court held that there was a high chance of a confusing co-parenting regime for the child if a contact order was allowed. Ultimately, the BC Supreme Court held that it was not in the best interests of the child to impose a contact order.

Summary

In summary, the best interests of a child is the paramount consideration. While the facts in this case are unique, the principles and reasoning still apply to other similar relationships. Whether a court will order a contact order is fact sensitive and will vary from case to case. It is in the parent’s best interest to maintain a civil relationship with the surrogate, get official written documentation confirming that the child has been surrendered to the intended parents, and continue to look out for the best interests of the child.

If you are concerned that you might find yourself in a similar predicament, we at Clark Wilson are more than happy to discuss how this may affect you and your family. Please feel free to contact Chantal Cattermole or anyone in the Clark Wilson family law group for more information.

Contributing Advisors