Surrogacy

The Law and Relevant Practical

Considerations Jo Richards, Lawyer,

Mater Health Services

Judith Hunter, Clinical Safety Officer

Mater Health Services

Surrogacy Arrangement

• Is an arrangement whereby a woman agrees to carry and

deliver a child for another person or couple.

• The woman who carries the child is the “Birth Mother” or

“Surrogate”.

• The couple who will be receiving the child are either the

Intended parents / Substitute parents / Commissioning

parents .

• Once the child is born it will be permanently relinquished by the

Birth mother into the care of the intended parents.

Types of Surrogacy - Gestational surrogacy

• The Birth Mother is implanted with an already fertilized embryo

which was produced using IVF, either, via the Intended

Parents‟ egg and sperm or using a donated or purchased egg

and sperm (for example same sex couples).

• In this case the Birth Mother makes no genetic contribution to

the child.

• This type of surrogacy is far more common in Australia, and is

viewed as providing a greater distance between the surrogate

mother and the child.

Types of Surrogacy - Traditional Surrogacy

• The Birth Mother provides the egg and is impregnated with

the sperm of the intended father or from donor sperm

(usually through AI).

• In these cases, the Birth Mother is genetically linked to the

child but she relinquishes any legal rights of parentage over

the child to the Intending Parents.

The Law Generally

• The laws of each state are broadly similar, with a few minor

differences.

• Tasmania has a Surrogacy Bill (which has been in limbo for over 12

months).

• Northern Territory have no laws in relation to surrogacy.

The Law Generally

In broad terms :

• Altruistic surrogacy is permitted;

• Commercial surrogacy is banned;

• However, some States in Aust allow O.S surrogacy (Vic, WA

and SA)

Difference in State laws –What form of surrogacy is permitted

STATE TRADITIONAL GESTATIONAL

QLD Y Y

NSW Y Y

ACT N Y

VIC Y Y

SA N Y

WA N Y

Difference in State laws –Who can be Intended parents

STATE MARRIED DEFACTO

COUPLE

SAME SEX

COUPLE

SINGLE

QLD Y Y Y Y

NSW Y Y Y Y

VIC Y Y Y Y

ACT Y Y Y N

WA Y Y N Y (woman

only)

SA Y Y (together

3 years)

N N

Difference in State laws Age of Parties

STATE BIRTH MOTHER BIRTH MOTHER

PARTNER

INTENDED

PARENTS

QLD 25 25 25

NSW 25 Any age 25

ACT 18 Any age 18

VIC 25 Any age 18

WA 25 25 18

SA 18 18 18

Guiding principles of Surrogacy Laws

• The wellbeing and best interests of a child are paramount.

• To promote openness and honesty regarding parentage.

• That a child receive the same status, protection and support as

any other child regardless of how child conceived whether

genetic relationship between child and any other parties.

• That if children born together they stay together.

The Process - Eligibility

• Parties must first be eligible to enter into a surrogacy arrangement.

• All parties must be (18-25), at the time of entering into the surrogacy

arrangement.

• There must be a „medical or social need‟ for the surrogacy arrangement

The Process – Legal Advice & Counseling

• The Birth Mother (and Partner) and Intended Parents must

each receive:

1. independent legal advice about the proposed surrogacy

arrangement and its implications before entering

arrangement; and

2. consultation with an appropriately qualified counselor.

• The Intended Parents are required to pay for all legal costs for

all parties.

The Process – Cont.

• The arrangement must then be negotiated and finalised

between the parties.

• The surrogacy arrangement needs to be signed by the Birth

Mother, her Partner and the Intended Parent/s. It does not

need to be signed by any donor.

• Surrogacy can then proceed and conception can occur.

• Once the baby born, registration of birth by Birth Mother. Birth

certificate issued.

• Application of Parentage order made to Court, if granted,Court

can order the Birth Certificate to be amended to record the

intended parents as the parents

Enforceability of Surrogacy Arrangements

• Surrogacy arrangements are non-enforceable by law.

• Only arrangements regarding “reasonable costs” are

enforceable.

• At any time before the Court makes a determination on

parentage, any party can relinquish rights to the child.

Reasonable Surrogacy Costs of the birth mother

• In order to prevent and discourage commercial surrogacy

arrangements; only reasonable costs can be recovered by the

Birth Mother.

• Includes reasonable costs:

– associated with attempts to become pregnant;

– incurred during pregnancy, and birth;

– medical costs for the Birth Mother and Child;

– legal costs;

– actual lost earnings in some circumstances.

Rights of the Birth Mother

• A Birth Mother has the same rights to manage her own

pregnancy as any other pregnant woman, although it may be

possible for an injunction to be made to restrain her from

terminating the pregnancy.

• After birth, the Birth Mother (and partner if any) is presumed to

be the Mother / Parents (irrespective of the intended parents

biological connection to the child).

• The Birth Mother/Parents will have parental responsibility for

the child until a parentage order is made in relation to the child.

Risks for Birth Mother

• Intended Parents elect not to proceed to obtain parentage

orders – leaving Birth Mother to raise the child or adopt.

• Remaining the parent (and decision maker) for at least 28 days

following birth up to 6 months.

• If commercial element found, is ground for application to

discharge the parentage order.

Rights of Intended Parents

• Child must reside with Intended Parents for 28 days before the

application for a parentage order can be made.

• Intended Parents do not have a right to make health decisions

for Birth Mother or baby, however, should be treated with

respect in recognition of their status as potential future parents

of the baby.

• Ability of intended parents, if child not handed over, to apply to

Court for time with child.

Risks for Intended Parents

• Birth Mother will not relinquish the child or consent to

Parentage order being made.

• Genetic contribution of no advantage.

• No control over decisions or conduct of Birth Mother during

pregnancy.

Medical decision making – Birth Mother

• If Birth Mother loses capacity to make decisions during her

pregnancy, the decision making passes in accordance with

ordinary principles of law – her NOK etc.

• The existence of surrogacy arrangement does not change the

process for determining a substituted decision maker.

Medical decision making - Baby

• Birth Mother will need to give consent for any treatment to baby

(this should be clarified with Birth Mother in planning).

• Intended Parents do not have right to make health decisions

for baby.

• If Birth Mother can not be found – medical staff or Intended

Parents may need to make an application to Court for order –

best interests of child.

• If Emergency – treatment would go ahead without consent.

Transfer of Parentage – Court requirements

• The intended Parents must make the application for Parentage

to the Court.

• The Court must be satisfied that:

– the child has been in the care of the intended parents for 28

days;

– independent legal advice was sought by all parties prior to

arrangement;

– all parties participated in counseling prior to the

arrangement;

– the parentage order is in the best interests of the child;

Transfer of Parentage – Court requirements

– the surrogacy arrangement was made prior to conception;

– the arrangement was made with the consent of all parties;

– the arrangement is not commercial; and

– the parties have participated in counseling following the

birth

Supporting SurrogacyPresenter: Judith Hunter

Background

• Legislation Agreement 2010.

• Demand for care and management of surrogate women 2011.

• Catholic Ethos.

• Mater Health Service Values.

Step 1. Development of Protocol

Needed to:

1. Comply with current surrogacy legislation.

2. Legal support.

3. Meet the catholic church ethos.

4. Meet the values of Mater Health Service.

5. Ethics Support.

6. Meet the needs of women & families.

7. Meet the needs of staff.

Protocol

Developed December 2011

PRINCIPLE:

1. To ensure that Mater Mothers Hospitals’ facilitate clinically safe

and ethically and legally appropriate care to women and

families involved in a surrogate pregnancy and birth.

2. To ensure care at the Mater Mothers’ Hospital is aligned with

Queensland’s Surrogacy Act 1.

3. “The Catholic tradition affirms the special dignity of every

woman carrying a child in her womb … Catholic healthcare

services should support parents and their unborn children

throughout pregnancy and child birth as an expression of

respect for the inherent dignity of every human being”.

Protocol Content

• Pre the transfer of parentage order - all decisions relating to care of

the mother and infant are made by the birth mother and or birth

parents.

• Informed consent questions will be directed to the birth mother and

or birth parents.

• Any decisions regarding the emergency medical care of either the

birth mother or the infant at any time are made by the birth mother /

parents until parentage order has been made and care has been

transferred to the intended parents.

• The birth parents remain the custodians of the infant during the

hospital stay.

Protocol Content Con’t

• The intended parents are to be included and respected

however they are not afforded the right to make decisions.

• The transfer of parentage order may be not less than 28 days

after the birth of the baby and no longer than six months after

the birth of the baby.

• The birth mother/parents may decide to hand over care of the

baby to the intended parents sooner than 28 days. However

they remain in the birth mother and or parents care for the

purposes of consent until discharge from the hospital.

Step 2: Inform Staff

• Midwifery & Medical

• VMO‟s

• Education Sessions

• Forums

• Letters

Education Sessions Information

• What is surrogacy?

• Ethical Issues.

• Surrogacy Act & Purpose.

• Birth Parents; Intended Parents & Others.

• Health Decisions.

• Rights of Intended Parents.

• Scenario Examples: Intrapartum;

Postnatal.

• Declaration of Parentage / Parentage

Order.

Letter to VMO

• Letter forwarded to all Credentialed

VMOs.

• Informing them of Surrogacy Liaison

Service implemented.

• Outlining what service offers.

• Noting Mater facilitates clinically safe,

ethical & legally appropriate care to

women and families in surrogate

pregnancy & birth.

• But highlighting Mater does not

support or provide services to assist

conception involving surrogacy

arrangements.

Step 3. Surrogate Liaison Midwife

• Role & Responsibilities.

• Recruitment.

Role & Responsibility of Surrogate Liaison Midwife

• When surrogate pregnancy is booked @ MMH/MMPH, Surrogate

Liaison Midwife(SLM) is notified.

SLM is responsible for:

• Developing a Care plan in consultation with the birth & intended

parents.

• Plan includes disclosure of Mater Health Services responsibilities to:

– the birth parents and should also include (as far as possible) the wishes of the

birth and intended parents regarding the birth and postnatal care.

– Any aspects of the care plan that require discussion with the multidisciplinary

team are to be facilitated by the SLM and decisions documented.

• Ensuring care plan is clearly documented and filed in the birth

mother‟s clinical notes.

Role & Responsibilities Con’t

• Communication with hospital medical & midwifery staff &

VMO‟s/

• Point of contact for all Surrogate related issues.

– Birth parents

– Intended parents

– Financial.

– VMO.

• Staff Education.

• Protocol review & update.

• Further role development. (Continues to evolve).

• Case reviews - Lessons Learnt.

Notification & Management of Arranged Surrogacy

• Methods of notification:

– Midwife interview at booking.

– Antenatal referral by GP.

– VMO referral.

• Surrogate Liaison Midwife is alerted.

• Interview arranged with birth & intended parents.

• Care plan is devised.

• Care plan discussed with staff / VMO.

• Care plan made available in medical record.

• iPM alert.

• Accommodation arrangements made for intended Mother / Parents.

• Finance advised.

Case One: Lisa & Amanda

Care Plan – In Hospital Stay

• Family are to be accommodated in a single room or a shared room by

themselves if possible. Intended mother will be staying the full stay to care

for the baby.

• Lisa Hills is the birth mother and Amanda and Luke Veitch are the intended

parents. Lisa and Amanda are sisters. The baby is the biological baby of

Amanda and Luke Veitch.

• Planning a normal birth (previous history normal birth). Lisa has requested

that the intended father be given the opportunity to cut the cord. Baby is to

go to Amanda and Luke for skin to skin contact after the birth. Baby is to be

formula fed.

• It has been explained that decisions and consent around the birth process

will be directed to the birth parents under all circumstances.

Care Plan Con’t

• Amanda has requested to stay in the postnatal room with Lisa during her

postnatal stay and has asked that she be responsible for caring for the

baby. It has been explained to Amanda that whilst we agree and are

happy to help facilitate this - staff will direct all questions around decision

making for the baby to the Birth Mother Lisa, while she and the baby

remain inpatients on the postnatal ward. Therefore all decisions and

consent about care of the baby are by the birth mother / parents.

• Stay should be extended to at least day 3 so that the baby can have

Neonatal screen before discharge as intended family live on the Gold

Coast.

Case 2: Unbooked Surrogate

• Identified by midwives on postnatal ward a possible surrogate.

• Birth Mother & Intended parents.

• Parents were visited by Surrogate Liaison Midwife to follow up

and clarify staff concerns.

• Birth mother confirmed her pregnancy had been a surrogate.

• Intended parents were not the initial intended parents.

• Birth mother had changed her mind re intended parents during

pregnancy.

• Birth Mother had agreed to go home with agreed intended

parents to assist with parenting and breast feeding in the initial

stages.

Case 2 Con’t

• Situation was discussed with MMH directors & Surrogate

Liaison Midwife .

• Plan was to have birth mother and intended parents reviewed

by psychologist and social workers to ensure baby was going

home to safe environment.

• All parents got OK.

• Baby was discharged home with Birth mother and intended

parents.

• (Birth mother was unbooked to confine at Mater Mothers‟

Hospital).

Case 3: Surrogate with Risk Pregnancy

• Patient Classification: Private

• Birth mother is the biological mother of Intended mother.

• The baby is the biological baby of intended parents.

• Birth Mother Risks:

– Previous pre-term birth @ K32

– 50+ years of age.

Care Plan

• Elective caesarean section at 38 weeks unless otherwise indicated.

• All four parents to be in theatre for birth of the baby.

• Skin to skin contact between Intended mother and baby at birth.

• Intended mother is to give the first breastfeed.

• Birth Mother to give expressed colostrum to baby.

• Intended mother to stay with Birth mother postnatally. (To breastfeed).

• Ensure appropriate breastfeeding chair available for Intended mother .

• Surrogate policy has been discussed with birth and intended parents.

Admission process for Intended Parents.

• Admit the patient as a normal boarder with an Insurer of

SELF.

• Cost per night rate is $807.00 (Non-refundable)

• Payment prior to admission for the total expected nights

stay.

• No limit on LOS as self funded.

• Rooming in with birth mother is at birth mothers consent.

Lessons Learnt.

• Communication.

• Surrogate Liaison Midwife Role continues to evolve.

• Respond to staff concerns and act appropriately.

• Clear understanding of birth parents rights & responsibilities.

– Copy of protocol provided to birth & intended parents.