examining the regulations, policies and protocols of surrogacy arrangements in australia
DESCRIPTION
Jo Richards, Lawyer, Clinical Safety and Quality Unit, Mater Health Services; and Judith Hunter, Clinical Quality and Safety Officer, from Mater Health Services have both presented at the Obstetric Malpractice Conference. If you would like more information about the conference, please visit the website: http://bit.ly/10xh1iOTRANSCRIPT
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.