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About surrogacy

About surrogacy

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Surrogacy is when one woman (the surrogate mother) agrees to bear a child for another couple (the intended parents or the commissioning couple) and surrender it at birth.

There are two types of surrogacy.  In ‘partial surrogacy’ the surrogate mother provides an egg which is fertilised with sperm from the intended father by IUI or IVF.  In ‘full surrogacy’ (also known as ‘host’ or ‘IVF’ surrogacy) the surrogate mother has no genetic link with the child she carries.  The embryos are usually created from the eggs and sperm of the intended parents, but sometimes donated eggs or sperm are used from anonymous donors to create the embryos for replacement into the host.

Who might benefit from surrogacy?

Any woman who is physically unable to carry a child could benefit from surrogacy.  A variety of causes account for this - hysterectomy, repeated miscarriages, repeated failure of embryos to implant, or serious medical problems so that a pregnancy would entail a serious health risk for her.

Who should make decisions during and after pregnancy?

Ideally, a joint decision should be reached between the surrogate mother and the intended parents, but there may be times when their views will conflict.  It should be clear to everyone involved that the surrogate mother, with the advice of health professionals, will make the final decisions.  The type of decision might include termination of pregnancy for foetal abnormalities, or the preferred method of delivery.
 
After the delivery, provided the child has been passed to the intended parents, the responsibility for decision-making should also pass to them.

Criteria for becoming a surrogate mother

A potential surrogate mother must be in good overall health, and be able to undergo a pregnancy with the minimum amount of risk to her own health.

There should be no medical contraindications for pregnancy and the surrogate mother should not be a heavy smoker, should not drink excessively and should not abuse drugs.

It is strongly recommended that a surrogate mother should have borne at least one child previously, and should preferably have completed her own family.

Because the risks of pregnancy increase with age, any woman over 35 should give careful consideration before deciding to become a surrogate mother.

Being a surrogate mother is an emotionally and physically demanding task.  It is important to have the backing of a partner, family or friends to provide emotional support and practical help.

Careful consideration must be given to the implications of surrendering the child at birth, the effect on any existing children, her partner and her family.

It is also advisable for a woman considering surrogacy to discuss the matter with her general practitioner.  He may be able to provide advice and support, and will wish to be aware of the medical details which may be relevant to the patient’s future care.

If the surrogate mother is also to be the egg donor, she must also undergo the different screening tests as laid out in the HFEA Code of Practice 5th Edition (Sections 4.10-4.18).

Health risks

The risk of transmitting infections such as HIV or hepatitis is greatly reduced by full screening of the intended parents. Sperm or embryos are stored in quarantine whilst repeat tests are carried out. The surrogate mother is also required to undergo screening test.
 
Screening tests for the surrogate and intended mother and father

Intended mother Intended father Surrogate mother
  • HIV – repeated 6-monthly
  • Hepatitis B & C –6-monthly
  • TPHA
  • Chlamydia
  • High vaginal swab
  • HIV – repeated 6-monthly
  • HepatitisB & C - 6- monthly
  • HIV
  • Hepatitis B
  • Hepatitis C
  • Rubella screening
  • THPA
  • Chlamydia
  • High vaginal swab

 

Replacing more than one embryo into the surrogate mother’s uterus increases the risk of multiple pregnancies to about 20%.  This carries associated risks for both mother and babies, such as premature delivery and a possible operative delivery.

The usual risks of pregnancy include ectopic pregnancy, miscarriage, high blood pressure, gestational diabetes and possible post-natal depression.

Implications of surrogacy

Implications for the intended parents

Couples contemplating surrogacy may be concerned about the uncertainty of the adoption or parental orders process.  They might worry about their reaction to the child being born handicapped; and with partial surrogacy, they need to consider the implications of donor eggs or sperm or both.  They may even come to regard the child not as a release from childlessness, but a continuing reminder of their inability to produce a child without help.  Some may be concerned that they will not be able to accept the child as their own

Implications for the surrogate mother’s family

It is important that the surrogate mother’s partner is able to give his full support for the woman’s decision.  The couple needs to refrain from unprotected intercourse, which could strain their relationship.

In the event of the surrogate mother deciding to keep the baby, although she may experience guilt and other emotions associated with failure to keep to her agreement, she will clearly want the baby.  However, her partner may find it difficult to accept the child.  Also, by law, the partner is the legal father unless he can show that he did not consent to treatment.  Therefore, there may be some risk of psychological problems for the partner.

Other children of the surrogate mother need to be informed of what is happening; otherwise they may be disturbed by the disappearance of the baby after birth.

The surrogate mother’s parents may experience difficulty in understanding their daughter’s decision, and find it hard to relinquish a relationship with a baby who might otherwise have been their grandchild.

Implications for the child

Commissioning parents need to consider whether or not to tell the child of his or her origins.  Research shows that most couples that have children conceived by surrogacy decide to explain the circumstances to the child.  If they decide not to tell, they face a number of difficulties.  Surrogacy is difficult to conceal from others and if other people know about the arrangement there is the risk that the child may find out from them.  The experience of learning this way, and the discovery of deception by his or her parents, may be very disturbing for a child.  At the age of 18 the child will have the legal right to discover the identity of his or her surrogate mother.

It is important therefore, for the surrogate mother and the intended parents to agree on a level of contact which they feel is appropriate for them.

Legal issues of surrogacy

What is the legal position?

The law does not prohibit surrogacy; however, it is illegal for an individual or agency to act on a commercial basis to organise surrogacy arrangements.  It is prohibited for a couple to advertise for a surrogate mother, or for a woman to advertise that she is willing to be a surrogate.  Voluntary agencies like COTS can give information and support to those interested in surrogacy, and put potential surrogate mothers and intended parents in touch with each other.

Full surrogacy, which involves the creation of embryos outside the body, must be performed in a clinic licensed by the HFEA.

No surrogacy arrangements are enforceable by law.  Therefore, irrespective of whether a contract has been signed, or any money has changed hands, either party could change its mind at any time.  For this reason, it is important that all parties should consider these implications very carefully.

Registration of birth in surrogacy cases

Surrogate parents (birth mother and her partner/husband) are the legal parents of a child born through a surrogacy arrangement until legal parentage is transferred to the commissioning couple.  The surrogate mother must therefore register the baby to which she has given birth in the normal way.  Her husband or partner is expected to register as the father.

When a parental order has been granted by a court, the Registrar General will make an entry in a separate Parental Order Registration re-registering the child.  This will be cross-referenced with the entry in the Register of Births.  It will not be possible for the public to make a link between entries in the Register of Births and the Parental Order Register.  It will be possible for adults who are he subject of parental orders to gain access, after being offered counselling, to their original birth certificates.

Parental Orders in Surrogacy Cases   (Ref. HFEA Code of Practice 6th Edition)

These conditions must be fulfilled in order for a parental order to be granted:

  • The child must be genetically related to at least one of the commissioning couple
  • The surrogate parents must have consented to the making of the order (unless incapable of giving consent or are untraceable) no earlier than six weeks after the birth of the child
  • The commissioning couple must be married to each other, and both must have reached the age of 18
  • The commissioning couple must have applied for an order within six months of the child’s birth
  • No money, other than expenses, must have been paid in respect for the surrogacy arrangement, unless authorised by a court
  • The child must be living with the commissioning couple
  • The commissioning couple must be domiciled in the United Kingdom, the Channel Islands or the Isle of Man.

Application forms for parental orders are available from Family Proceedings Courts (Magistrate Courts) in the commissioning couple’s home area.  Legal Services Commission funding may be available to cover parental order proceedings.

In any proposed surrogacy situations where the above requirements are not met, the requirements of the Adoption Act 1972 would need to be taken into account.  This requires the involvement of an approved adoption agency.
 
Situations that may arise that could mean a parental order could not be applied for include:

  • The commissioning parents are not married
  • There is no genetic link between the commissioning parents and the baby the surrogate is carrying.  This would be, for example, where donor sperm had been used in a partial surrogacy arrangement (i.e. using the surrogate’s egg) or donated embryos had been used to initiate the pregnancy
  • Payment beyond reasonable expenses had been given to the surrogate mother
  • The commissioning parents are not domiciled in the United Kingdom, the Channel Islands or the Isle of Man

Clinics must not offer surrogacy in these situations unless they have taken account of the legal requirements of the Adoption Act 19721.  This would include the need to involve a registered adoption agency prior to the birth of the baby and the full adoption procedure would need to be gone through.  Where a child is born to a surrogate mother, the placement of that child with the commissioning couple for them to adopt may involve a breach of the Adoption Act 1972.  Clinics are in danger of breaching the Adoption Act 1972 if they set up or offer to set up a surrogacy arrangement that could not result in an application for a parental order being applied for.

1 Section 11 of the Adoption Act 1972 provides that an adoption shall not make arrangements of the adoption of a child or place a child for adoption, unless (a) the proposed adopter is a relative of the child and he is acting in pursuance of an order of the High Court.

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