Parenting Time & Decision Making

Surrogates: Do They Get Parenting Time with the Child? 

Written by Russell Alexander / (905) 655-6335

Surrogates: Do They Get Parenting Time with the Child? 

In an interesting British Columbia case called K.B. v. M.S.B., the court was asked to consider the rights of a surrogate who had agreed to help an infertile couple.  The question was whether she was temporarily entitled to an independent parenting time with the child, at least until the matter of legal parentage was fully explored at a trial.

The case involved a couple who had been married for over a decade, but were unable to conceive a child.  Several early attempts at in vitro fertilization were unsuccessful.

They met a woman (“KB”) in 2014.  She was a single mother, with two children of her own from another relationship.  She and the husband became close friends, and then had a secret affair by becoming lovers.  She also became very close friends with the wife at the same time, acting as what she said was “a bit of a buffer” between them in their fertility struggles.  She even travelled with them to India where the couple underwent another unsuccessful in vitro procedure.

Eventually, KB offered to act as a surrogate for the couple.   They entered into a surrogacy agreement, with the idea being that KB was agreeing to have one of the wife’s frozen embryo’s implanted in her womb.  But when embryo implantation failed, the husband approached KB with another option:  That KB would donate her own eggs for fertilization with the husband’s sperm, and would also serve as the couple’s surrogate.  The initial plan was to impregnate KB at a fertility clinic, or with a home insemination kit.

But those artificial methods never happened:  At one point KB and the husband essentially “cut to the chase”, and had intercourse.  A child was conceived naturally.  The couple paid $40,000 to KB for her surrogacy expenses.  (As an aside:  KB claimed the husband promised that if she went along with the surrogacy plan, he would leave his wife so that he and KB could raise the child together as a couple.  That didn’t happen, either.)

When the child was born, KB signed documents acknowledging she was only a surrogate, and that she was surrendering the child to the couple.

For the first two years of the child’s life, KB had some contact with her.  However, the relationship between her and the couple eventually broke down, and KB was denied further contact for over a year. Pointing to the fact that the child was conceived through sexual intercourse between her and the husband, KB applied to the court for a declaration that she was a “parent”.  She also asked for equal parenting time, joint guardianship, and child support.  She claimed the $40,000 she was paid was merely a gift – not a payment under any valid surrogacy agreement.

Pending a full trial of those issues, KB applied for the right to have interim contact with the now-4-year-old child.   The court refused.

Even though KB was the biological mother, the child had spent the vast majority of its life with the couple. In fact, they were the only parents the child had ever known.  In contrast, KB’s relationship with the child spanned only the first few years, and was intermittent at best.   There was a valid surrogacy contract in place, and this left KB without any independent right to have contact with the child – except as the couple saw fit to allow.  In any event, they were entitled to change their minds.

At the time of the hearing, KB had not even seen the child for over a year.  To allow for resumed contact would simply not be in the child’s best interests, and would subject her to a confusing co-parenting regime.  The court explained:

What is clear to me is that a four-year-old child needs stability. That is yet another important factor weighing against the application. The [couple] are the only parents that [the child]. has ever known. She appears to be well-settled in her family as it is now. … it may sometimes be appropriate to order that a biological parent have contact with their adopted child, the facts of that case were very different. … such an order will be appropriate “when the child is ready to learn this information”. In this case, I am not persuaded that [the child] will be ready any time soon to learn of her connection to K.B., given the history recounted above.

Finally, it was important to note that the current relationship between the couple and KB was acrimonious;  to force contact between them would be potentially harmful to the child.  In the court’s view, this was a “compelling factor” that precluded the granting of KB’s request.

For the full text of the decision, see:

K.B. v M.S.B., 2021 BCSC 1283 

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About the author

Russell Alexander

Russell Alexander is the Founder & Senior Partner of Russell Alexander Collaborative Family Lawyers.