British Columbia·CBC Investigates

'Another woman gave birth to my child': surrogate sues fertility clinic

A woman who agreed to have a baby for an infertile friend is suing the fertility clinic involved, claiming one of her donated eggs was later used to “implant and impregnate” her friend directly, without her written consent.

Lawsuit alleges clinic was ‘high-handed and arrogant’ by failing to obtain egg donor’s informed consent

Alicia Chonn, 38, says she was 'completely blindsided' by a phone call from the Olive Fertility clinic (Nicolas Amaya, CBC)

A Vancouver woman who agreed to have a baby for an infertile friend is suing the fertility clinic involved — claiming one of her donated eggs was later used to "implant and impregnate" her friend directly, without her written consent.

The lawsuit alleges her friend, identified only as "Jane Doe," went on to give birth to a baby boy who is genetically half Chonn's child.

In an interview with CBC News, Alicia Chonn, 38, says she had no idea the second procedure was to be performed.

"I was completely blind-sided," she said.

The civil claim filed in BC Supreme Court, alleges the Olive Fertility Centre and doctors Abraham (Al) Yuzpe, Gary Nakhuda and Elizabeth (Beth) Taylor acted "in a high-handed and arrogant fashion by failing to obtain" Chonn's informed consent.

Contacted by CBC News, a clinic spokesperson declined comment. Olive Fertility and the doctors have yet to file a legal response. None of the allegations has been proven in court.

Alleged conflict of interest

According to the lawsuit, Chonn doesn't hold her friend to blame, instead she accuses the clinic and doctors of "creating a conflict of interest between two sets of patients and callously preferring the interest of paying patients" to Chonn, "who was not a paying patient."

In Canada, surrogates cannot be paid for their services. Couples trying to have a child, however, can pay tens of thousands of dollars to fertility experts.

Chonn had agreed to act as a surrogate to carry a baby for Jane and John Doe because Jane Doe's eggs weren't viable. Some of Chonn's eggs were removed from her body and fertilized by John Doe's sperm in vitro. One of the resulting embryos was then implanted in Chonn's womb.

Chonn's lawyer, Scott Stanley, says the Assisted Human Reproduction Act requires the 'informed consent' of donors

She gave birth to a boy in March 2015. Chonn relinquished all rights to the child.

This, she says, was the original agreement.

"These are two people that I love very much, and so I had set out to just really want to help them and bring happiness to them and really felt they deserved to be parents. And just because of circumstances, they weren't able to," said Chonn. "It was just as simple as, I carry the baby, no problem."

But then eight months later, she says there was a turn of events that left her with the feeling of  "complete devastation and shock."

Unexpected phone call

Her lawsuit alleges in December 2015, Chonn was driving to work when she received a phone call from the Olive Fertility Clinic, "hurriedly and forcefully asking her to consent to using one of the embryos, created with her ovum, to impregnate Jane Doe." Chonn was told her friend was "prepped for the procedure and waiting for…her consent."

"They're telling me she's pretty much lying there on the table…ready to receive my embryo," recalls Chonn.

Stock photo shows human egg being fertilized "in vitro" at a fertility clinic

"It's so overwhelming because you also have to remember that I carried the first one. So now all of a sudden you're presenting me with an option that I didn't even know was an option. So she could have carried the first time? So then why did I go through all that? Why did I have to live this?" 

Chonn says she couldn't fathom someone else carrying her child.

"I had committed and agreed to the one child, I fulfilled and lived up to my word. And anything else after the fact, I feel quite strongly was never discussed."

Issue of consent

Chonn's civil claim alleges she "was in a state of shock and surprise and did not issue her consent to the procedure. (She) made an overture indicating there was nothing she could really do to stop the (Olive Fertility doctors)", which they "incorrectly, negligently and maliciously acted on and attempted to construe as her consent" when they "knew no such consent had been provided and would have been contrary to The Assisted Human Reproduction Act."

Northern Ontario's first fertility clinic has been surprised by the demand for services in it's first two years. (Dr. Thomas Hannam)

Chonn's lawyer, Scott Stanley, says that federal act prohibits the use of genetic material without the written consent of the donor.

"The law is quite clear that in order to use someone's tissue, (donors) have to provide written consent and that it needs to be informed, if you're going to use that tissue for reproductive purposes."

Chonn's egg was implanted and Jane Doe gave birth to a baby boy in August 2016.

'It obliterates me everyday,'says Chonn

The lawsuit claims that birth had "devastating emotional and psychiatric consequences" for Chonn, "resulting from her sense of being violated and used by the Defendants for profit."

The action is seeking unspecified financial damages, in part to pay for Chonn's ongoing therapy and counselling.

Chonn admits she was naive and trusting, but still believes in surrogacy, "as long as all of the rules that are in place are followed."

She says, however, she would never be a surrogate again.

"It obliterates me everyday … I didn't carry him. So it's even more to process mentally because another woman gave birth to my child," says Chonn.

Now estranged from Jane and John Doe, she says she has been unable to see the two boys — one born to her, the other to her friend. She is hoping for a reconciliation, despite the lawsuit against the clinic.

"Christmas is coming. And I hope that perhaps I have an opportunity to spend time with those children. But the reality is that perhaps I don't. So that's something I need to face every day."


Eric Rankin

Investigative journalist

Eric Rankin is an award-winning CBC reporter. His honours include the 2018 Canadian Screen Award for Best Local Reportage, the 2017 and 2015 RTDNA awards for Best In-depth/Investigative Reporting, and the 2009 Jack Webster award for Best News Reporting.