By Chantal M. Cattermole and Jeannette Aucoin

In a high-conflict case out of the Ontario Superior Court of Justice, the reality and dangers of entering into a surrogacy agreement without proper legal advice or documentation have again been highlighted in Jacobs and Coulombe v Blair and Amyotte, 2022 ONSC 3159.

The matter arose when same-sex couple Mr. Jacobs and Mr. Coulombe entered an oral agreement with their friends Ms. Blair and Mr. Amyotte to become the parents of their newly conceived child. None of the parties could have anticipated that they would end up fighting for the child’s parentage, with the opposition coming from the very people who offered the surrogacy in the first place.

The Informal Agreement

Mr. Jacobs and Mr. Coulombe were close friends with Ms. Blair, who had met Mr. Jacobs during their early years in college. Ms. Blair and Mr. Jacobs had discussed the idea of her acting as his surrogate for several years, but Ms. Blair had insisted the arrangement wait until she had her own children with her then-partner first.

After enduring the breakdown of her marriage, Ms. Blair advised Mr. Jacobs and Mr. Coulombe that she was ready to become their surrogate.

In-depth conversations between the parties about surrogacy ensued, with Ms. Blair going as far as discussing assisted reproduction with her doctor and researching fertility clinics with Mr. Jacobs and Mr. Coulombe.

Before a formal surrogacy agreement could be executed, Ms. Blair and her new partner Mr. Amyotte fell pregnant unexpectedly. Ms. Blair told Mr. Jacobs and Mr. Coulombe that she was not ready to be a parent, nor was Mr. Amyotte, who already had a three-month-old. She asked if Mr. Jacobs and Mr. Coulombe would raise their child as if it had been conceived through a surrogacy arrangement.

Mr. Jacobs and Mr. Coulombe quickly agreed. Throughout the remainder of her pregnancy, Ms. Blair was referred to by Mr. Jacobs and Mr. Coulombe as their surrogate. They testified that they believed they had entered into a verbal surrogacy agreement with Ms. Blair and Mr. Amyotte.

As Mr. Jacobs and Mr. Coulombe would soon find out, a verbal surrogacy agreement is not recognized by the courts, and, in all likelihood, will be severely condemned if brought before them.

After Conception

Throughout conversations with their respective families, Ms. Blair and Mr. Amyotte agreed that the child’s primary caregivers would be Mr. Jacobs and Mr. Coulombe. Ms. Blair and Mr. Amyotte would still have extensive involvement in the child’s life with frequent visiting opportunities. Ms. Blair expressed the need for detailing the surrogacy agreement in legal documents. She reached out to a family lawyer over Facebook Messenger to discuss her options to sign over custody of her child to Mr. Jacobs and Mr. Coulombe. Although the necessity of legal involvement was discussed between the parties, no formal agreement was ever drafted.

It wasn’t until Ms. Blair discussed her situation with a hospital social worker prior to the birth that she was told that the hospital would not allow Mr. Jacobs and Mr. Coulombe to be named on the child’s birth certificate nor be present for the birth because they had nothing legally-binding to confirm Mr. Jacobs nor Mr. Coulombe as the child’s parents.

After the Delivery

Ms. Blair gave birth to a healthy baby girl on January 6, 2021, and immediately notified Mr. Jacobs and Mr. Coulombe could retrieve their child.

Mr. Jacobs and Mr. Coulombe met with Ms. Blair and Mr. Amyotte and took the child home at one day old to start their new family. Ms. Blair and Mr. Amyotte visited the child at Mr. Jacobs and Mr. Coulombe’s home in March and received consistent pictures and updates about her developmental milestones.

Because there was no written agreement before conception, Mr. Jacobs and Mr. Coulombe applied for a Declaration of Parentage and a Declaration of Non-Parentage. Unfortunately, because the child was conceived through sexual intercourse and not through assisted production, paired with the lack of a pre-conception agreement, their applications were denied.

This denial of Parentage incited the unfortunate chain of litigation that followed.

When Ms. Blair was notified the Declaration of Parentage applications had been denied, she testified that she was elated to learn she was still the child’s legal parent. Ms. Blair advised legal counsel on April 14, 2022, that she was reconsidering the child’s placement, and on the same day, Ms. Blair and Mr. Amyotte advised Mr. Jacobs and Mr. Coulombe that they were coming to pick up the child.

Comments from the Court

After the commencement of litigation by Mr. Jacobs and Mr. Coulombe by way of a court application on April 20, 2021, both parties brought an emergency Notice of Motion.

During the hearing, Judge Ramsay admonished both parties, stating that he felt “everyone did everything wrong”.

Regardless of the parent’s actions, the Court stated the child did not deserve to be punished for the lack of formalities taken by the parties. Judge Ramsay stated that the only criterion he could consider was what was best for the child. Judge Ramsay’s decision allowed for the continued residence of the child with Mr. Jacobs and Mr. Coulombe and parenting time for Ms. Blair and Mr. Amyotte twice per week.

At trial, the Court reiterated the importance of utilizing the legislative framework available for placing children through adoption and surrogacy. The Court stated it should not “condone a party having a child and simply handing them off like a football to a third party”.

The Court then ordered that the child remains in the primary care of Mr. Jacobs and Mr. Coulombe, and they would continue to be responsible for major decisions for the child. Ms. Blair and Mr. Amyotte were awarded consistent and regularly scheduled parenting time including, overnight weekend visits, mother’s day, and every other Christmas.

Takeaway

It is essential to have formalized surrogacy arrangements in place to avoid such complex and heartbreaking situations.

In this case, the lack of engagement with the proper legal processes of surrogacy has resulted in friendship-ending litigation over what should have been the start of a beautiful family. There may be no greater life decisions than bringing a child into your family, and ensuring the protection of that decision through properly drafted agreements, as shown in this case, can be the difference between a family of 2 or a family of 3.

If you are contemplating surrogacy or sperm, ova, or embryo donation agreements, our family lawyers will work with you to ensure your specific needs are met. With over 85 years of combined experience, families trust us to help them navigate the complex legal framework and processes and successfully move forward to their next chapter.