The review looks at the medico-legal challenges of surrogacy in modern obstetrics, highlighting recent changes in UK laws, the guidelines and legislation available and the legal requirements for parenthood and parental rights.
The number of surrogate pregnancies in the UK is unknown, since many arrangements proceed without any medical or legal input, states the review. In April 2010, the Human Fertilisation and Embryology (HFEA) Act 2008 part 3 came into effect, giving same sex and unmarried couples the same legal rights as married heterosexual couples to apply for parental orders. With this change in the law, the authors predict that obstetricians and midwives will see more cases of surrogate pregnancies in the immediate future.
The review notes that currently there are no UK guidelines to provide advice for surrogates, commissioning parents or healthcare professionals. There is no guidance about eligibility for treatment, no formal data collection about the incidence, no standard screening and no formal requirement for counselling, unlike IVF pregnancies. With the absence of national guidance, the authors have created a pro forma to guide healthcare staff when managing surrogate pregnancies.
The guidance covers pre-pregnancy counselling, antenatal care, labour and delivery and postnatal care.
Surrogacy can be a complex legal issue. Both the commissioning parents and the surrogate mother can sign a surrogacy agreement, which is lawful, however it is legally unenforceable.
In the UK, the law confirms that the surrogate is the legal mother and the commissioning parents gain custody by applying for an adoption or parental order. If the surrogate changes her mind, she is usually allowed to keep her baby, state the authors.
The postnatal period, therefore remains the most cautious and anxious period for both the surrogate and intended parents and the authors of the review offer advice for healthcare professionals during this period.
The hospital’s risk management and legal team should be informed regarding whether they are prepared to discharge the surrogate mother and baby separately, state the authors. This is a contentious issue with no legislation or official stance. If they are not, the baby and surrogate should be discharged together, and this should be clearly documented, state the authors.
Celia Burrell, Consultant Obstetrician, from Barking, Havering and Redbridge University Hospital NHS Trust and co-author of the review said:
“There are many ethical and legal dilemmas for healthcare professionals in managing surrogate pregnancies; we have therefore introduced a practical guide for midwives and obstetricians which we hope will help in managing these cases.
“The current law in this area is precarious especially with differing legislation around the world. As recently as one month ago a new precedent was set in the Republic of Ireland which again changed definitions of parenthood, allowing the genetic mother to be on the birth certificate.
“We are calling for additional legislation and guidelines to prevent women and babies being exploited, provide safeguards for children and guide professionals.”
TOG‘s Editor-in-chief, Jason Waugh said:
“As healthcare professionals will increasingly see more surrogate pregnancies, it is paramount that additional guidance is available to guide healthcare staff so they are well equipped to fully support the surrogate mother, commissioning parents and the child.
“This review is extremely important as it gives the reader a clear and concise presentation of the ethical and medico-legal issues that might ensue during a surrogate pregnancy. It also includes a pro forma to guide management in cases of surrogate pregnancy with useful basic reminders of the key issues and milestones to be recorded.”