A Canadian court is weighing a surrogacy tug-of-war with a twist: A woman who bore a child for a married couple wants joint guardianship of the baby because she had an affair with the father.
The surrogate, identified in British Columbia court documents only by the initials K.B., says she was engaged in an extramarital relationship with the father—also identified by his initials, M.S.B.—but volunteered to serve as a surrogate for him and his wife because she “wanted to support their marriage.” After a failed attempt to inseminate her artificially, however, she claims he suggested they try to conceive naturally—and secretly promised her that if it was successful, he would leave his wife and raise the baby with her as their own.
Fast forward four years and the father is still with his wife, the surrogate is being denied any visitation at all, and the conflict has made it all the way to the province’s top court.
K.B. and M.S.B. met in the spring of 2014, according to court documents, and K.B. says they began having an affair shortly thereafter. She claims she became pregnant by M.S.B. twice during this time, and both times ended the pregnancy by abortion.
Despite this, K.B. claims she wanted to support M.S.B in his existing marriage, and offered to serve as a surrogate for him and his wife of five years, who were having trouble conceiving.
The trio allegedly traveled to India in July 2016 to implant one of the wife’s frozens embryos into K.B.’s uterus, but the pregnancy didn’t take. A month later, K.B. claims, the couple asked her to act as their surrogate using her own eggs.
Instead of impregnating her at a fertility clinic or with a home insemination clinic, however, K.B. says the husband suggested he impregnate her naturally—just as he had done twice before.
“Moreover,” the court documents state, “[K.B.] says that he also promised her that if she went along with that plan, he would leave [his wife] and they would raise the child together as husband and wife.”
The pregnancy took, and by April 2017, she says, “M.S.B. was telling her that he would soon be leaving [his wife,] but now only after the child was born.”
The husband tells a slightly different version of events. He admits to the affair but claims it did not begin until after the child was conceived, and that the plan was always for him and his wife to be the legal parents of the child. The couple has submitted multiple text messages to the court in which K.B. expresses excitement about carrying their child for them, as well as a signed surrogacy agreement from July 2016 that states the couple will take “full responsibility of the child.” (K.B. denies having signed this.)
K.B., for her part, has produced documents from two abortion appointments prior to when the child was conceived listing M.S.B. as her emergency contact. She has also provided a July 2019 text message from M.S.B. in which he “appears to acknowledge that [the child] was indeed conceived by means of sexual intercourse between them,” according to the court.
Both parties acknowledge signing a May 2017 agreement giving full custody of the child to the married couple and allowing K.B. some visitation rights, but the mistress claimed she signed this only because she believed they were necessary for her daughter to receive health-care coverage.
Over the next two years, K.B. claims she played a “maternal” role in the child’s life, breastfeeding her, changing her diapers, cooking for her, and even taking her to medical appointments. She says she saw the child five or six times a week, and that her daughter even started calling her “Masi,” which means “auntie” in Punjabi.
But the relationship between the trio began to fray when the married couple says K.B. began making “progressively greater demands”—including a formal schedule for her visits with the child and a $100,000 payment. (The couple says they paid her $40,000 for her expenses in 2017; K.B. claims this was a “gift” from the husband.) The relationship between K.B. and the husband ended in the summer of 2018, and by February 2020, the married couple was denying her any visitation rights at all.
K.B. filed a lawsuit on July 13, 2020, seeking to be declared the child’s parent and asking for equal parenting time, joint guardianship, and child support. The decision over the child’s legal parentage will be made at a trial in January, but B.C. Supreme Court Justice Warren Milman weighed in last week over whether K.B. should be allowed visitation in the interim.
Noting the “highly unusual facts of this case,” a seemingly uncomfortable Justice Milman said there was “no comparable precedent” directing his ruling on the case. He noted that both K.B. and the married couple had provided “almost entirely ... self-serving accounts” of their own qualifications as parents, but that both had rational arguments for why the child should or should not spend time with her biological mom.
In the end, however, he ruled that what the child needed most was stability, and that the married couple were the only parents she had ever known. If K.B. were allowed to care for her daughter at certain times before the trial, he wrote, it would be “impossible for K.B. to mask her true feelings for [the child] while she is in her care.”
K.B., he ruled, “has not met the burden she carries to show that an order allowing her to resume contact with [the child] at this stage would be in [the child’s] best interests.”
The decision of who will be the child’s legal parent, however, remains to be seen.