Surrogate pregnancy: ethical and medico-legal issues in modern obstetrics

Authors

  • Celia Burrell MPhil, MRCOG, MRCP, Post Grad Diploma in Medical Law,

    Consultant Obstetrician and Obstetric Lead for Risk Management, Corresponding author
    • Barking, Havering and Redbridge University Hospital NHS Trust, Queen's Hospital, Department of Obstetrics & Gynaecology, Romford, Essex, UK
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  • Hannah O'Connor MBBS, MA

    Foundation Year 1 Doctor
    1. The Shrewsbury and Telford Hospital NHS Trust, Mytton Oak Road, Shrewsbury, UK
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Correspondence: Celia Burrell. Email: burrellcelia@yahoo.co.uk

Abstract

Key content

  • This comprehensive literature review of the medico-legal challenges of surrogacy in modern obstetrics, highlights recent changes in UK law, the limited guidelines and legislation available, and the legal requirements for parenthood and parental rights.
  • UK legislation involving surrogacy and the medico-legal definition of parenthood is reviewed.
  • There is new UK surrogacy legislation affecting the parental order qualification, indicating that obstetricians will see more surrogate cases in the immediate future.
  • Conflicts can arise when surrogacy agreements are broken, since they are lawful but legally unenforceable in the UK.
  • There are ethical and legal dilemmas for healthcare professionals in managing surrogate pregnancies in the absence of professional guidance, and as a result the authors of this review introduced a practical guide and pro forma.

Learning objectives

  • To explain current legislation surrounding surrogacy in the UK.
  • To discuss ethical and moral concerns regarding the practice of surrogacy.
  • To apply medico-legal principles in the management of surrogate pregnancy.

Ethical issues

  • The exploitation versus empowerment and autonomy of women participating in surrogacy.
  • The commodification of reproduction through surrogacy.
  • The validity of consent with the possible presence of emotional or financial coercion, and the unpredictability of outcomes in surrogacy arrangements.

Introduction

Surrogacy involves an agreement between a third party (commissioning couple) and a woman, that she will become pregnant with the intention of handing the child over to the commissioning couple after delivery. This can take two forms:

  • Host surrogacy (gestational or full surrogacy) involves in vitro fertilisation (IVF) using gametes from the intended parents and/or donors, and embryo transfer into the surrogate. The surrogate has no genetic link to the child.
  • Straight or partial surrogacy entails artificial insemination using either the intended father's or donor sperm. The surrogate mother's egg is used and she therefore has a genetic link to the child.

Since the 1980s, surrogacy has gradually gained more acceptance from medical governing bodies and the public. In 1984, The Warnock Report[1] branded surrogacy as ‘totally ethically unacceptable’. The first UK case, in 1985, involved a British surrogate and an American commissioning parent, and caused media sensation.[2] By 1990, the British Medical Association (BMA) had changed its stance from condemning surrogacy to accepting professional involvement in surrogacy in some circumstances,[3] and later, in 1998, The Brazier Report reviewed financial arrangements, regulation and legal governance.[4] It recommended the development of national comprehensive regulation incorporating legislation and a code of practice. It emphasised prohibition of commercialisation except allowance for reasonable expenses. In 1996, the BMA branded surrogacy as ‘a reproductive option of last resort’.[5]

The number of surrogate pregnancies in the UK is unknown, since some arrangements proceed without any legal or medical input (especially those between friends and family members), and the baby is handed over without any legal formalities. About 50% of surrogates are known to the commissioning parents. The Brazier Report estimated that annually in the UK, there are around 100–800 surrogate pregnancies, resulting in about 50–80 births, and 1–2 disputes.[4] 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 and outcomes of surrogate pregnancies, no standard screening, and no formal requirement for counselling, unlike IVF pregnancies. There is no follow-up on the children, who on reaching adulthood after counselling have legal access to their original birth certificates. Some IVF units have local guidelines that offer fertility services to potential surrogate mothers <40 years old, with a completed family of at least one child, and counselling is offered.

Medico-legal background

In April 2010, the Human Fertilisation and Embryology (HFE) Act 2008[6] part 3 came into effect, giving same sex and unmarried couples the same legal rights as married heterosexual couples to apply for parental orders. The Surrogacy Arrangements Act 1985,[7] bans the commercialisation of surrogacy, but the HFE Act 2008[6] permits non-profit organisations, for example Childlessness Overcome Through Surrogacy (COTS), to charge a fee to advertise and match surrogates with commissioning parents.[8] Both parties sign a surrogacy agreement, which is lawful but legally unenforceable, of which its challenges are discussed in the cases below.

The Surrogacy Arrangements Act 1985[7] section 1A, (amended by the HFE Act 1990[9]) states that:

“…no surrogacy arrangement is enforceable by or against any of the persons making it …”

In the UK, the surrogate has a prima facie legal responsibility for a child that she never wanted and leaves the commissioning couple with no legal responsibility for this child whose creation they actively seek.[10]

The legal definitions of motherhood and fatherhood in surrogacy

Under UK laws, the legal mother is unambiguous in both partial and full surrogacy. The HFE Act 2008[6] section 33, confirms that the surrogate is the legal mother. It states:

“ ..the woman who is carrying or has carried a child as a result of the placing in her of an embryo or of sperm and egg, and no other woman, is to be treated as the mother of the child…”

The HFE Act 2008[6] section 47 further states that a woman cannot be treated as the mother as a result of egg donation. In some countries, legal and genetic motherhood is synonymous, while others may argue the woman who raised the child is the mother. Children born by intercourse between two consenting adults (i.e. between the surrogate and the husband/partner of the commissioning couple) falls outside of this law. HFE legislation determines the definition of fatherhood under the Adoption and Children Act 2002[11] section 111, stating that the man whose name is on the child's birth certificate acquires parental responsibility. However in surrogacy, common law paternity rights are trumped by the HFE Act 2008[6] section 38, which treats the surrogate's husband as the father unless he objected to the treatment.

Parenthood: gaining custody of the child

The commissioning parents gain custody of the baby by applying for an adoption or parental order. Of course, there are some cases whereby the parties involved do not seek legal input, and a parental order is not sought. The criterion for granting the order is explained below. Prior to the HFE Act 2008,[6] the commissioning couple could only acquire parental responsibility through adoption. The Adoption and Children Act 2002[11] bans payment for adoption. Legally, surrogates are only paid for reasonable expenses of about £10 000–15 000. In the case of Re S (Parental Order),[12] reasonable expenses did not include costs to the surrogate that she would normally incur, for example rent. It may include medical and legal expenses, travel costs to medical appointments and maternity clothes. The UK courts must ensure that the surrogate agreements do not equate to payment for a child or circumvent childcare laws, but must act to prevent parental orders being awarded to unfit parents.[13] It is normally in the best interests of the child for a parental order to be granted. However, the court can grant alternative orders, for example, residence orders, adoption, or additional orders for the child to have contact with the surrogate.

Under the HFE Act 2008[6] section 54, parental orders are granted if:

  • The commissioning couple are married, in a civil partnership or cohabitees, and both are >18 years old.
  • The conception must be from placing the embryo, sperm or egg into the surrogate mother or by donor insemination. The egg or sperm must be from one member of the commissioning couple, thus providing a genetic link.
  • The application must be made within 6 months after delivery.
  • The child must be living with the commissioning couple, one or both of whom must be domiciled in the UK.
  • The surrogate (and the legal father if not the commissioning father) must give consent for the parental order transfer within 6 weeks after delivery.
  • No payment should be made to the surrogate (other than reasonable expenses). Expenses are decided by the court.[14]

Ethical and moral debate

The right of autonomy is fundamental in a democratic society. The risk of exploitation of women remains a crucial concern. A UK study of 34 women who had surrogate pregnancies showed that 1 in 34 women sought financial gain, but most were altruistic in helping childless couples.[15] However, whether or not the morally pleasing concept of surrogacy for altruistic purposes is used as an ethical and legal veil, disguising desires for financial gain is debatable. If this is the case then the courts allowing for ‘reasonable expenses’ may be a legal fiction. Furthermore, if surrogacy is exploitative (which requires us to accept that the practice is unfair, whether or not it is harmful or advantageous to all parties), why does legislation only make agreements that are legally unenforceable rather than making the practice legal altogether?

Surrogacy could be argued as a treatment for some forms of childlessness; for example, post-hysterectomy or malignancy. Legal restriction to ban surrogacy agreements could be argued as being paternalistic, and could force surrogacy underground.[14] Lack of clarity in legislation in Canada regarding what counts as reasonable expenses has raised concerns over covert surrogacy arrangements,[16] which could drive vulnerable women and childless couples further away from potential protection. This could be avoided by respecting a woman's right to participate in surrogacy, with adequate accompanying regulations. In spite of the Human Rights Act (HRA) 1998[17] article 8 (right to a private life), HRA 1998[17] article 12 (right to marry and found a family), and HRA 1998[17] article 14 (prohibiting unjust discrimination), society may be harmed by the perception that reproduction is trivialised and commercialised by transactions that translate a woman's reproductive capacity and infants into commodities that can be bought and sold.[18] The concept of depersonalisation of pregnant women as vehicles for genetic perpetuation (and the providing of an heir), must be balanced against benevolence to help childless couples.

Surrogates are asked to sign a detailed agreement or contract which attempts to cover many eventualities. These might include fetal abnormality, a handicapped child, or death of the surrogate or commissioning parents during pregnancy before the parental order is granted (life insurance is sometimes provided to the surrogate by the commissioning parents). Funeral arrangements are usually discussed, including who would pay the costs if the baby dies. Payment would be discussed in detail involving full payment for a healthy baby, but reduced payment in case of a miscarriage (whereby proof is usually needed, and the reduction in payment depends on the gestation), stillbirth or intrauterine death. Additional payment is usually offered in the case of unplanned surgery, for example, hysterectomy. It is ethically debatable how to quantify compensation for hysterectomy.

A 2005 American study demonstrated the real possibility of maternal and fetal morbidity and mortality. In 10 cases of host surrogacy, an intrapartum hysterectomy and a late puerperal hysterectomy were required in 2 cases. In the first case, the infant also had cerebral palsy, and in the second case one of the subsequent triplets died due to a hypoplastic left ventricle, and the surrogate mother sustained multiple cerebral infarcts and blindness.[19]

Only an overview of some moral and ethical conflicts in surrogacy can be addressed here, but additional challenges and learning points are seen in the case law discussed below. The focus of this review is to offer a practical and clinical pro forma as a much needed guide to help healthcare staff.

Perils of surrogacy: case law

A successful surrogate agreement relies on the cooperation of all parties. The critical distinction lies in balancing between reasonable compensation for services rendered, but short of inducement to gestate. Financial payment surrounding surrogacy remains a contentious problem, especially when this involves foreign surrogates as the legislation may differ from that in the UK. Currently, only the birth mother (surrogate) is entitled to maternity pay and leave, and the intended father is entitled to paternity pay and leave if he is the legal father.

The postnatal period remains the most cautious and anxious period for both the surrogate and intended parents. There is no case law to provide guidance regarding the period of time from delivery to when the baby is handed over to the intended parents if the Parental Order has not yet been granted, making the surrogate the legal mother with parental responsibility. The hospital's risk management and legal team should be informed regarding whether they are prepared to discharge the surrogate mother and baby separately. 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. In the event of a surrogacy arrangement (suspected or confirmed) emerging in the postnatal period, the community midwife should escalate to the supervisor of midwifery, the child protection safeguarding midwife, the clinical risk management team, and the hospital legal department for further advice. The postnatal care should be maintained in keeping with the Trust's guidelines. See the learning points in Box 1.

The first US surrogacy case, Doe v Kelley,[20] scrutinised the legality of payment. If any party is domiciled in the UK, then UK laws apply regardless of where conception occurred; otherwise the child could be born stateless and not eligible for a passport, as it may be that neither the surrogate nor commissioning couple are legal parents under their own country's legal system. Re K (Minors)[21] involved a UK commissioning couple and a surrogate from India. The twins were delivered in India, and remained there from birth until 18 months old. Although in India the commissioning couple were the registered legal parents at birth, they were denied UK parental rights as the babies had permanently domiciled outside the UK. In the case of Re G (Surrogacy: Foreign Domicile),[22] this involved a Turkish commissioning couple and a British surrogate. The child was born in the UK and handed to the Turkish couple, but they were not domiciled in the UK and so were ineligible for a parental order. The UK

Box 1. Learning points

Best interests

Healthcare professionals should always act in the best interests of the surrogate, to whom a duty of care is owed.

Consent

The surrogate mother is entitled to make all decisions, even if they are not in the best interests of the child.

Management plan

A consultant-led multidisciplinary management plan should include:

  • a risk assessment
  • clear documentation and communication.

Protection of the child's welfare

Until the Parental Order is granted, the surrogate mother's consent is needed for all treatment.

Postnatal care

The community health visitor should visit both the surrogate mother and the baby wherever they reside to provide continued support.

Risk management and legal support

As a result of the absence of UK guidance, the risk management team, hospital legal team and/or a medical defense union should be consulted if advice is needed.

judge decided that it was in the best interests of the child to allow the couple to take the baby to Turkey for adoption. Re X and Y (Foreign Surrogacy)[23] involved a UK commissioning couple and a married woman from Ukraine. The twins were delivered in Ukraine, after implantation with a donor egg fertilised by the commissioning father's sperm. Under Ukrainian laws, the surrogate and her husband had no parental rights, but under UK law they were the legal parents. The UK judge granted the parental order as this was in the best interest of the children. Two US cases; Re S (Parental Order)[24] involving a UK commissioning couple and a Californian surrogate; and Re L (A Minor)[25] involving a UK commissioning couple and an Illinois surrogate, demonstrated the judge granting parental orders in the best interests of the children despite there being payment in excess of reasonable expenses, since all parties had acted in good faith.

Individuals enter a surrogacy agreement at their peril. If the surrogate changes her mind, she is usually allowed to keep her baby, as seen in the cases of Re P (Minors) (Wardship: Surrogacy)[26] and Re T (A Child) (Surrogacy: Residence Order).[27] A surrogate would be deprived of her baby if she was an unfit mother however it was conceived. If the surrogate handed over the child, who then settled into their new family, then changed her mind and wanted the child back, the court would usually act in the best interests of the child to prevent undue disruption. This was seen in the cases of Re MW (Adoption: Surrogacy),[28] and C v S.[29] However, there have been cases when the surrogate proved to be unfit due to repeated deception and the court acted in the best interests of the child to retain parental right to the commissioning parents. This was seen in Re N (A Child)[30] and Re P (Surrogacy: Residence).[31]

In the US case of Johnson v Calvert,[32] the surrogate changed her mind while still pregnant. The US judge awarded parental rights to the commissioning couple, stating that the surrogate by voluntarily contracting away her rights to the child, conceded its best interests were not with her. The perils of surrogacy can be far reaching. Even after a successful parental order transfer, the surrogate mother can return to seek custody of the child years later. In the US case of Re Marriage of Moschetta,[33] the surrogate who was the genetic and gestational mother sought custody of the child 1 year later when the commissioning parents divorced, but this was rejected as not being in the best interests of the child.

Conversely, there have been more uncommon instances where both the surrogate and intended parents reject the subsequent child. In 2001, a British surrogate took the American intended parents to court in the USA after she was discovered to be carrying twins. In the USA (unlike the UK) surrogacy contracts are legally enforceable, so the intended parents had rights over the twins. The intended parents attempted to back out of the contract upon discovering it was a twin pregnancy. The surrogate succeeded in quashing the legal rights of the intended parents, and proceeded to have the twins adopted.[18] This case highlights the potential for all parties to reject subsequent children, particularly in cases of multiple pregnancy, disability or birth trauma.

Though some surrogacy arrangements do face problems like those discussed, the many cases that proceed without problems should also be remembered, though not represented numerically.

Surrogacy in practice

Before the changes in the law in April 2010, The Brazier Report,[4] showed that there were less than 1000 surrogate pregnancies in the UK, resulting in under 100 deliveries. It is estimated that annually there are about 1–2 surrogate pregnancy disputes that are publicised, compared with about 723 913 annual live births in England and Wales in 2011.[34] There are no official data from the Office of National Statistics, the Human Fertilisation and Embryology Authority or the Department of Health. COTS, who were involved in their 600th surrogate pregnancy in 2007, quote 98% of pregnancies organised through their organisation reaching a successful conclusion.[35]

Healthcare professionals may have limited legal or professional guidance; however, it is expected that they will encounter more surrogate pregnancies due to changes in the law. Pregnancies can take place with no medical input, so high-risk patients may present to obstetricians already pregnant and with a signed contract, or the agreement may only come to light in the postnatal period. Healthcare professionals should avoid conflicts of interest by ensuring they do not manage both the intended parents and the surrogate. The American College of Obstetricians and Gynecologists (ACOG) Surrogate Motherhood Guidelines[36] advised doctors to avoid cases of exploitation, where there is possible coercion by emotional or financial means from the intended parents to continue the pregnancy against medical advice.

A duty of care is owed to the surrogate mother. The unborn fetus has no legal rights, so the surrogate must make all decisions, even if it is not in the best interests of the fetus (including lawful termination). In the event of conflict, the surrogate should be supported to make the final decision without coercion. Clear documentation is key, and it is recommended that an additional copy of the antenatal notes should be kept by the hospital. This enables the trust to have an additional copy of the notes, separate from the antenatal notes that are carried by all pregnant women in the UK. The medical staff should be neutral, non-judgemental, respectful and supportive. Confidentiality remains paramount when formulating a multidisciplinary management plan. In addition to the obstetric team, other key personnel may be included on a need to know basis for high-risk cases, so the care will be tailored based on individual needs. The antenatal, intrapartum and postpartum care plan should be consistent with the trust's guidelines. Additional antenatal investigations (e.g. growth scans, glucose tolerance testing) should be done based on clinical indications. The mode and timing of delivery (i.e. early induction of labour and the option of vaginal birth after caesarean) should be done in keeping with the Trust's guidelines. Labour can be anxious for both parties, so the management should be consistent with the trust's policy, and healthcare staff should be informed if the intended parents are expected to attend the delivery, and should be aware of the immediate postpartum plans.

In the absence of national guidance, the authors have formulated a pro forma (Box 2), which is a guide to help healthcare staff. The pro forma incorporates the NICE clinical guideline on antenatal care, which recommends that 10 antenatal visits is adequate for nulliparous women, and 7 is adequate for multiparous women.[37] Since there are no guidelines to determine the suitability of a woman for surrogacy, healthcare professionals can be faced with women who are high risk, so performing a risk assessment is essential. Care should be tailored to individual needs.

Box 2. Pro forma for the management of surrogate pregnancies

Patient name:Consultant:
Date of birth:Person completing the form:
Hospital number:Date:

Pre-pregnancy counselling

  •  Offer counselling to the surrogate and intended parents both separately and together.
  •  Refer to a consultant early if it is a high risk case.
  •  All medical staff must maintain accurate and contemporaneous record of all discussions and decisions.

Antenatal care

8–12 weeks

  •  Midwife booking visit, alone with the surrogate initially, to discuss:
    •  Risk assessment; including medical and pregnancy issues, lifestyle and health issues.
    •  Consultant referral in the first trimester if high risk (i.e. pre-pregnancy medical problem).
    •  First and second trimester screening and investigations, and any other health concerns.
    •  Clear documentation of information to be disclosed to the intended parents.

12–14 weeks

  •  Clinic review for:
    •  Antenatal screening blood tests to be taken.
    •  Dating scan.

15–16 weeks

  •  Discuss booking blood results.
  •  At least one early antenatal appointment between the consultant obstetrician and surrogate mother alone.
  •  Risk assessment by consultant obstetrician and midwifery staff.
  •  Multidisciplinary management plan involving the general practitioner, safeguarding children midwife, risk management team, supervisor of midwifery, and the community midwife.
  •  Surrogacy agreement to be discussed, copied and included in the medical records; but only with the surrogate mother's consent.

20–21 weeks

  •  Ultrasound anomaly scan and review.

25 weeks

  •  Midwifery review; escalate to the consultant if any concerns or conflict.
  •  Discuss antenatal classes and care of the baby.

28 weeks

  •  Midwifery/consultant review, routine blood tests and anti D if required.
  •  Check maternal and fetal wellbeing.
  •  Surrogate to be seen alone to discuss any concerns in private.

31 weeks

  •  Midwifery review; escalate to the consultant if any concerns or conflict.

34 weeks

  •  Midwifery review; to check maternal and fetal wellbeing.
  •  Discuss the surrogacy agreement, including if the intended parents will be present at delivery.
  •  Discuss the birth plan and plans for feeding the baby.
  •  Discuss with the hospitals legal and risk management team whether the baby can be discharged with the intended parents.
  •  The surrogate should be seen alone for at least part of the consultation. The intended parents may be present for part of the consultation, with the surrogate's consent.
  •  Escalate to the consultant if any concerns/conflict.

36 weeks

  •  Consultant review to discuss timing and mode of delivery.
  •  Check maternal and fetal wellbeing.

38 weeks

  •  Midwifery review, to check maternal and fetal wellbeing. Escalate to the consultant if any concerns or conflict.
  •  Consultant review if high risk.

40 weeks

  •  Midwifery review, to check maternal and fetal wellbeing. Escalate to the consultant if any concerns.
  •  Consultant review if high risk.
  •  Discuss membrane sweep and induction of labour if indicated.

Intrapartum care – labour and delivery

  •  After delivery, the surrogate should be given the option to spend some time alone with the baby. She should be given opportunity for private discussion with medical staff if she changes her mind and decides to keep her baby while still on hospital premises, so that this can be escalated to the risk management and legal team for additional support.
  •  Healthcare staff should be informed if the intended parents will be present at the birth.
  •  Review the plan for intrapartum care. Clear documentation and communication both verbally and written is crucial. In the case of maternal or fetal complications or conflict, escalate to the consultant on call and/or the patient's consultant and the risk management team if needed.

Postnatal care

  •  Plans must be in place for the surrogate to consent to screening and treatment of the baby, since she is still the legal mother until the parental order is granted.
  •  If the hospital does not agree to the baby being discharged with the intended parents, the baby and surrogate mother must be discharged together. Document this clearly in the medical records.
  •  Notify the general practitioner and community health visitor on discharge, document the surrogate's address/contact details, and follow normal guidelines for postnatal care.
  •  Document the intended parents address/contact details and follow normal guidelines for postnatal care.
  •  Document the address of where the baby will be residing.
  •  Support should be offered to the intended parents regarding feeding the baby.
  •  Community healthcare staff should maintain a good relationship with the surrogate, so that she can communicate freely and be given support if she changes her mind before the parental order is granted.

With the increase in high risk pregnancies, when managing a patient with a surrogate pregnancy, consultants are advised to ensure that the next of kin is documented correctly (and not presumed to be the intended parents). Therefore, in the case of fetal or maternal morbidity (for example, special care admission or maternal HDU/ITU admission), the appropriate people will be informed.

Conclusion

The law surrounding surrogacy is precarious and indirect, as it was developed in a piecemeal fashion under the umbrella of IVF legislation. While IVF-assisted surrogacy lies within the legal framework of the HFE Act 1990,[9] other forms of surrogacy fall outside. This has resulted in a profound dichotomy. With the changes in the law allowing same sex and unmarried couples to apply for parental orders, the demand for surrogacy is unlikely to abate. Healthcare professionals may have limited legal knowledge, and with the absence of national guidance, the practical guide and pro forma discussed in this review will provide help in managing these cases. Current parliamentary debates are addressing the legal rights of civil partnerships. Problems that can sometimes occur in surrogacy are highlighted in case law, discussed above. The Brazier Report recommended a code of practice and a consolidated Surrogacy Act, but these are outstanding. With the anticipation of an increase in surrogacy assisted pregnancies, national audits (though still not entirely accurate) would help us to understand these pregnancies better, and guide healthcare professionals in the future. Additional legislation and guidelines are needed to prevent exploitation, support altruistic surrogates, help childless couples, provide safeguards for children, guide healthcare staff, provide support in case of unpredictable adversities and thus prevent covert surrogacy arrangements.

Disclosure of interests

None disclosed.

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