Examining the Regulations, Policies and Protocols of Surrogacy Arrangements in Australia


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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/10xh1iO

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Examining the Regulations, Policies and Protocols of Surrogacy Arrangements in Australia

  1. 1. SurrogacyThe Law and Relevant PracticalConsiderationsJo Richards, Lawyer,Mater Health ServicesJudith Hunter, Clinical Safety OfficerMater Health Services
  2. 2. Surrogacy Arrangement• Is an arrangement whereby a woman agrees to carry anddeliver 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 theIntended parents / Substitute parents / Commissioningparents .• Once the child is born it will be permanently relinquished by theBirth mother into the care of the intended parents.
  3. 3. Types of Surrogacy - Gestational surrogacy• The Birth Mother is implanted with an already fertilized embryowhich was produced using IVF, either, via the IntendedParents‟ egg and sperm or using a donated or purchased eggand sperm (for example same sex couples).• In this case the Birth Mother makes no genetic contribution tothe child.• This type of surrogacy is far more common in Australia, and isviewed as providing a greater distance between the surrogatemother and the child.
  4. 4. Types of Surrogacy - Traditional Surrogacy• The Birth Mother provides the egg and is impregnated withthe sperm of the intended father or from donor sperm(usually through AI).• In these cases, the Birth Mother is genetically linked to thechild but she relinquishes any legal rights of parentage overthe child to the Intending Parents.
  5. 5. The Law Generally• The laws of each state are broadly similar, with a few minordifferences.• Tasmania has a Surrogacy Bill (which has been in limbo for over 12months).• Northern Territory have no laws in relation to surrogacy.
  6. 6. The Law GenerallyIn broad terms :• Altruistic surrogacy is permitted;• Commercial surrogacy is banned;• However, some States in Aust allow O.S surrogacy (Vic, WAand SA)
  7. 7. Difference in State laws –What form of surrogacy is permittedSTATE TRADITIONAL GESTATIONALQLD Y YNSW Y YACT N YVIC Y YSA N YWA N Y
  8. 8. Difference in State laws –Who can be Intended parentsSTATE MARRIED DEFACTOCOUPLESAME SEXCOUPLESINGLEQLD Y Y Y YNSW Y Y Y YVIC Y Y Y YACT Y Y Y NWA Y Y N Y (womanonly)SA Y Y (together3 years)N N
  9. 9. Difference in State lawsAge of PartiesSTATE BIRTH MOTHER BIRTH MOTHERPARTNERINTENDEDPARENTSQLD 25 25 25NSW 25 Any age 25ACT 18 Any age 18VIC 25 Any age 18WA 25 25 18SA 18 18 18
  10. 10. 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 asany other child regardless of how child conceived whethergenetic relationship between child and any other parties.• That if children born together they stay together.
  11. 11. 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 surrogacyarrangement.• There must be a „medical or social need‟ for the surrogacy arrangement
  12. 12. The Process – Legal Advice & Counseling• The Birth Mother (and Partner) and Intended Parents musteach receive:1. independent legal advice about the proposed surrogacyarrangement and its implications before enteringarrangement; and2. consultation with an appropriately qualified counselor.• The Intended Parents are required to pay for all legal costs forall parties.
  13. 13. The Process – Cont.• The arrangement must then be negotiated and finalisedbetween the parties.• The surrogacy arrangement needs to be signed by the BirthMother, her Partner and the Intended Parent/s. It does notneed to be signed by any donor.• Surrogacy can then proceed and conception can occur.• Once the baby born, registration of birth by Birth Mother. Birthcertificate issued.• Application of Parentage order made to Court, if granted,Courtcan order the Birth Certificate to be amended to record theintended parents as the parents
  14. 14. Enforceability of Surrogacy Arrangements• Surrogacy arrangements are non-enforceable by law.• Only arrangements regarding “reasonable costs” areenforceable.• At any time before the Court makes a determination onparentage, any party can relinquish rights to the child.
  15. 15. Reasonable Surrogacy Costs of the birth mother• In order to prevent and discourage commercial surrogacyarrangements; only reasonable costs can be recovered by theBirth 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.
  16. 16. Rights of the Birth Mother• A Birth Mother has the same rights to manage her ownpregnancy as any other pregnant woman, although it may bepossible for an injunction to be made to restrain her fromterminating the pregnancy.• After birth, the Birth Mother (and partner if any) is presumed tobe the Mother / Parents (irrespective of the intended parentsbiological connection to the child).• The Birth Mother/Parents will have parental responsibility forthe child until a parentage order is made in relation to the child.
  17. 17. Risks for Birth Mother• Intended Parents elect not to proceed to obtain parentageorders – leaving Birth Mother to raise the child or adopt.• Remaining the parent (and decision maker) for at least 28 daysfollowing birth up to 6 months.• If commercial element found, is ground for application todischarge the parentage order.
  18. 18. Rights of Intended Parents• Child must reside with Intended Parents for 28 days before theapplication for a parentage order can be made.• Intended Parents do not have a right to make health decisionsfor Birth Mother or baby, however, should be treated withrespect in recognition of their status as potential future parentsof the baby.• Ability of intended parents, if child not handed over, to apply toCourt for time with child.
  19. 19. Risks for Intended Parents• Birth Mother will not relinquish the child or consent toParentage order being made.• Genetic contribution of no advantage.• No control over decisions or conduct of Birth Mother duringpregnancy.
  20. 20. Medical decision making – Birth Mother• If Birth Mother loses capacity to make decisions during herpregnancy, the decision making passes in accordance withordinary principles of law – her NOK etc.• The existence of surrogacy arrangement does not change theprocess for determining a substituted decision maker.
  21. 21. 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 decisionsfor baby.• If Birth Mother can not be found – medical staff or IntendedParents may need to make an application to Court for order –best interests of child.• If Emergency – treatment would go ahead without consent.
  22. 22. Transfer of Parentage – Court requirements• The intended Parents must make the application for Parentageto the Court.• The Court must be satisfied that:– the child has been in the care of the intended parents for 28days;– independent legal advice was sought by all parties prior toarrangement;– all parties participated in counseling prior to thearrangement;– the parentage order is in the best interests of the child;
  23. 23. 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 thebirth
  24. 24. Supporting SurrogacyPresenter: Judith Hunter
  25. 25. Background• Legislation Agreement 2010.• Demand for care and management of surrogate women 2011.• Catholic Ethos.• Mater Health Service Values.
  26. 26. Step 1. Development of ProtocolNeeded 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.
  27. 27. ProtocolDeveloped December 2011PRINCIPLE:1. To ensure that Mater Mothers Hospitals’ facilitate clinically safeand ethically and legally appropriate care to women andfamilies involved in a surrogate pregnancy and birth.2. To ensure care at the Mater Mothers’ Hospital is aligned withQueensland’s Surrogacy Act 1.3. “The Catholic tradition affirms the special dignity of everywoman carrying a child in her womb … Catholic healthcareservices should support parents and their unborn childrenthroughout pregnancy and child birth as an expression ofrespect for the inherent dignity of every human being”.
  28. 28. Protocol Content• Pre the transfer of parentage order - all decisions relating to care ofthe mother and infant are made by the birth mother and or birthparents.• Informed consent questions will be directed to the birth mother andor birth parents.• Any decisions regarding the emergency medical care of either thebirth mother or the infant at any time are made by the birth mother /parents until parentage order has been made and care has beentransferred to the intended parents.• The birth parents remain the custodians of the infant during thehospital stay.
  29. 29. Protocol Content Con’t• The intended parents are to be included and respectedhowever they are not afforded the right to make decisions.• The transfer of parentage order may be not less than 28 daysafter the birth of the baby and no longer than six months afterthe birth of the baby.• The birth mother/parents may decide to hand over care of thebaby to the intended parents sooner than 28 days. Howeverthey remain in the birth mother and or parents care for thepurposes of consent until discharge from the hospital.
  30. 30. Step 2: Inform Staff• Midwifery & Medical• VMO‟s• Education Sessions• Forums• Letters
  31. 31. 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 / ParentageOrder.
  32. 32. Letter to VMO• Letter forwarded to all CredentialedVMOs.• Informing them of Surrogacy LiaisonService implemented.• Outlining what service offers.• Noting Mater facilitates clinically safe,ethical & legally appropriate care towomen and families in surrogatepregnancy & birth.• But highlighting Mater does notsupport or provide services to assistconception involving surrogacyarrangements.
  33. 33. Step 3. Surrogate Liaison Midwife• Role & Responsibilities.• Recruitment.
  34. 34. Role & Responsibility of Surrogate Liaison Midwife• When surrogate pregnancy is booked @ MMH/MMPH, SurrogateLiaison Midwife(SLM) is notified.SLM is responsible for:• Developing a Care plan in consultation with the birth & intendedparents.• Plan includes disclosure of Mater Health Services responsibilities to:– the birth parents and should also include (as far as possible) the wishes of thebirth and intended parents regarding the birth and postnatal care.– Any aspects of the care plan that require discussion with the multidisciplinaryteam are to be facilitated by the SLM and decisions documented.• Ensuring care plan is clearly documented and filed in the birthmother‟s clinical notes.
  35. 35. 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.
  36. 36. 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.
  37. 37. Case One: Lisa & Amanda
  38. 38. Care Plan – In Hospital Stay• Family are to be accommodated in a single room or a shared room bythemselves if possible. Intended mother will be staying the full stay to carefor the baby.• Lisa Hills is the birth mother and Amanda and Luke Veitch are the intendedparents. Lisa and Amanda are sisters. The baby is the biological baby ofAmanda and Luke Veitch.• Planning a normal birth (previous history normal birth). Lisa has requestedthat the intended father be given the opportunity to cut the cord. Baby is togo to Amanda and Luke for skin to skin contact after the birth. Baby is to beformula fed.• It has been explained that decisions and consent around the birth processwill be directed to the birth parents under all circumstances.
  39. 39. Care Plan Con’t• Amanda has requested to stay in the postnatal room with Lisa during herpostnatal stay and has asked that she be responsible for caring for thebaby. It has been explained to Amanda that whilst we agree and arehappy to help facilitate this - staff will direct all questions around decisionmaking for the baby to the Birth Mother Lisa, while she and the babyremain inpatients on the postnatal ward. Therefore all decisions andconsent 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 haveNeonatal screen before discharge as intended family live on the GoldCoast.
  40. 40. 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 upand 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 duringpregnancy.• Birth Mother had agreed to go home with agreed intendedparents to assist with parenting and breast feeding in the initialstages.
  41. 41. Case 2 Con’t• Situation was discussed with MMH directors & SurrogateLiaison Midwife .• Plan was to have birth mother and intended parents reviewedby psychologist and social workers to ensure baby was goinghome to safe environment.• All parents got OK.• Baby was discharged home with Birth mother and intendedparents.• (Birth mother was unbooked to confine at Mater Mothers‟Hospital).
  42. 42. 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.
  43. 43. 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.
  44. 44. Admission process for Intended Parents.• Admit the patient as a normal boarder with an Insurer ofSELF.• Cost per night rate is $807.00 (Non-refundable)• Payment prior to admission for the total expected nightsstay.• No limit on LOS as self funded.• Rooming in with birth mother is at birth mothers consent.
  45. 45. 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.