A Canadian court weighs a tug-of-war over surrogacy with a twist: A woman who has given birth to a married couple wants joint guardianship of the baby because she had an affair with the father.

The surrogate mother, identified only by the initials KB on British Columbia court documents, says she had an extramarital relationship with the father – also identified by his initials MSB – but volunteered to serve for him and his wife because she wanted to support their marriage. ”After a failed attempt to artificially inseminate her, however, she claims that he suggested conceiving naturally – and secretly promised her that if he succeeded, he would leave his wife and bring the baby with him would wind her up.

Four years later, the father is still with his wife, the surrogate mother is refused any visit, and the conflict has made it to the provincial supreme court.

KB and MSB met in spring 2014, according to court documents, and KB says they had an affair shortly afterwards. She claims that during that time she became pregnant from MSB twice and both times ended the pregnancy through abortion.

Even so, KB claims she wanted to support MSB in his existing marriage and offered to serve as a replacement for him and his wife who struggled to get pregnant for five years.

The trio reportedly traveled to India in July 2016 to implant one of the woman’s frozen embryos in KB’s uterus, but the pregnancy did not last. A month later, KB claims, the couple asked her to act as their surrogate mother with their own eggs.

However, instead of impregnating them at a fertility clinic or home seminary clinic, KB suggested the husband suggest impregnating them naturally – just as he had done twice before.

“Besides,” the court records say, “[K.B.] says that he also promised her that if she agreed to this plan he would leave [his wife] and they would raise the child together as a husband and wife. “

The pregnancy was going on, and in April 2017 she says, “MSB told her he was going to leave soon.” [his wife,] but now only after the birth of the child. “

The husband tells a slightly different version of what happened. He admits the affair but claims that it did not begin until after the child was conceived and that he and his wife should always be the child’s legal parents. The couple sent several text messages to the court in which KB expressed their excitement about bearing their child for them, as well as a signed surrogacy agreement dated July 2016 stating that the couple took “full responsibility for the child.” (KB denies having signed this.)

For its part, KB has provided documents from two abortion appointments prior to conception, listing MSB as an emergency contact. She also posted a July 2019 SMS from MSB in which he “appears to confirm that”. [the child] was actually conceived through sexual intercourse between them, ”the court said.

Both parties confirm that they signed an agreement in May 2017 that gave the couple full custody of the child and KB some visiting rights, but the mistress claimed she only signed because she believed it was for her daughter was necessary to get health insurance.

For the next two years, KB claimed that she played a “maternal” role in the child’s life, breastfeeding them, changing her diapers, cooking for them, and even taking them to doctor’s appointments. She says she saw the child five or six times a week and her daughter even started calling her “Masi”, which means “aunt” in Punjabi.

But the trio’s relationship was shaken when the couple said KB made “increasingly higher demands” – including a formal schedule for their visits with the child and a payment of $ 100,000. (The couple say they paid their $ 40,000 for their expenses in 2017; KB claims it was a “gift” from the husband.) KB and the husband’s relationship ended in the summer of 2018, and was in February 2020 the couple deny her any right of visit.

KB filed a lawsuit on July 13, 2020 to be declared the child’s parent, demanding equal parental leave, shared guardianship and child support. The child’s legal parentage decision will be taken in a court case in January, but BC Supreme Court Justice Warren Milman last week weighed whether KB should be allowed to visit in the meantime.

Recalling the “very unusual facts of this case,” a seemingly inconvenient Judge Milman said that there was “no comparable precedent” to guide his decision in this case. He noted that both KB and the couple had made “almost exclusively … selfish reports” of their own parenting qualifications, but both had rational arguments as to why the child should or should not spend time with their birth mother.

In the end, however, he decided that the child needed stability the most and that the couple were the only parents she had ever known. If KB were allowed to care for her daughter at certain times prior to the trial, he wrote, it would be “impossible to hide her true feelings” for KB. [the child] as long as she is in her care. “

KB, he judged, “has the burden of showing an instruction that will allow her to re-establish contact [the child] at this stage would be in [the child’s] Interest.”

However, the decision as to who will be the child’s legal parent remains to be seen.