U.S. border officers turn back Canadian surrogate seeking fertility care

A Canadian surrogate's dream of helping an American couple complete their family is being denied. Adrian Ghobrial explains.

A Canadian woman trying to board a flight south to visit a California fertility clinic was recently denied entry into the United States by American customs and border officers.

Still in disbelief, Melody - who asked that we only use her first name - says she was in shock as two armed officers escorted her out of Calgary International Airport.

Melody is a Canadian surrogate who’s been trying for months to carry a second child for an American family unable to have a child on their own.

On Oct. 12, Melody arrived at Calgary International Airport’s U.S. customs preclearance area, and says she shared all her paperwork as a surrogate to travel to a fertility clinic in California, where the embryo is being stored. She also had her return ticket to Canada booked for the day after the procedure, with plans to remain pregnant in Canada and deliver the child on Canadian soil.

That’s when a U.S. customs and border agent told her what she was doing was “illegal, which isn’t”, Melody said. Surrogacy isn’t illegal in Canada, nor is it prohibited in the state of California.

She says the U.S. border agent also alleged she “was going down to California for financial benefit.”

Surrogates visiting fertility clinics in America isn’t uncommon. In an email to CTV News, a U.S. Customs and Border Protection spokesperson wrote that a Canadian “surrogate for an American family, particularly if compensation is involved, would likely be classified as employment under U.S. immigration law. Employment in the United States typically requires a work visa, such as an H-2B or another suitable visa category, depending on the specific situation.”

Melody said she wasn’t going to work in the United States, and she’s never made any money from being a surrogate.

Canadian law prohibits profiting from being a surrogate.

Melody said she is aware of the rules around receiving compensation as a surrogate. She’d previously delivered a child for the same California-based family. During that pregnancy in 2018, she only accepted payment for costs associated with carrying their child.

“We are allowed (in Canada) to reimburse surrogates for expenses they incur as a result of the surrogacy, as long as we have receipts and documentation,” said fertility lawyer Sara Cohen, who highlighted that in Canada surrogacy isn’t a money-making operation. “For example, her travel, medication, life insurance, legal fees, her hotel while visiting the fertility clinic in California, those are perfectly legitimate under Canadian law.”

“This surrogate is like an angel who’s going to help a family have a child, a child who is going to be so loved,” Cohen added.

The California couple trying to complete their family with Melody’s help are in a same-sex marriage. One of the spouses agreed to speak with CTV National News but asked that his real name not be used out of concern that going public may create more problems for Melody at U.S. customs. For this story, he is being called Paul Smith.

Smith says when Melody successfully carried and delivered their first son in 2018, they created a special bond.

“We’ve been really lucky to find Melody. We have this deep connection with her personally,” Smith said, adding that “our family loves Canada, and Canadians are this whole other breed of just genuinely good human beings.”

Melody agreed to carry a second child for them, but the pandemic put those plans on hold.

“We’ve been trying to have a second child ever since to complete what we consider our family,” Smith said.

On Oct. 12, when Melody messaged to say her entry to the U.S. had been denied by border agents, Smith says he initially thought she was joking.

“I’m not very political, but no one is trying to immigrate to the U.S. right now — especially from Canada,” Smith joked.

He knows, however, that the situation is no laughing matter. The stress of the unknown has weighed heavily on Smith and his husband, who say the future of their family now rests on the decision of a border agent on any given day.

“I hope she can come down. We’re not going to give up,” Smith said, wiping away tears.

Speaking to CTV National News, Melody, a Calgary resident, says U.S. customs officers also said she was an immigrant without paperwork, even though she says she provided all the appropriate travel documents.

“I’m a Canadian citizen; I work at a hospital. I have my own children in Canada. I’m not trying to immigrate; I’m just trying to go down to the U.S. for an appointment and come back home,” she said.“ Trying to have a family isn’t a criminal offence. Being a surrogate isn’t a criminal offence.”

Multiple lawyers who have recently spoken to CTV News about Canadians being turned away at the U.S. border say some of the politics in Washington are playing out at the Canada-U.S. border.

“It’s so disappointing that a (U.S.) governmental institution would interfere with such a relationship,” Cohen said. “This surrogate is doing everything completely legitimately, from what I can tell everything has been done by the book.”

Cohen said she has had hundreds of clients cross the border to visit American fertility clinics without issue, and called Melody’s case alarming.

“She’s trying to give this couple the most beautiful gift and is being led out of an airport by armed officers,” Cohen said.

Melody has booked another flight and plans to try again to clear U.S. customs and fly to the fertility clinic in California this Sunday, in hopes of helping the American family complete their dream.

“I hope that what happened was just an error, a mistake, and wasn’t done out of malice, and that this time I will be allowed to enter the United States for my appointment,” Melody said.

When pressed by CTV News, a spokesperson for U.S. Customs and Border Protection declined to say whether Melody will be allowed to cross the border when she tries again.