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Healthcare | Legal

The appropriate way for doctors to handle surrogacy births – insights from a surrogate mother and lawyer

5 Jul 2023, by Amy Sarcevic

The world of surrogacy is often a foreign one to health professionals, with many clinicians feeling as though they are in treading in a legal quagmire when handling the care of surrogate mothers.

Complexities around health disclosures, antenatal medical treatments and newborn care are among the pitfalls clinicians can encounter when dealing with a surrogacy. And there are often major consequences for mismanagement, explains Sarah Jefford OAM – a law director who has donated multiple offspring herself.

“I’ve heard about and personally experienced doctors who get confused about how to handle health disclosures relating to the mother; or how to apportion visiting time in birthing units for example. This can be really dangerous for both the birth mother and intended family,” she said ahead of the Obstetric Medico-Legal Conference.

“You are playing with the birth mother’s mental health if you don’t recognise her legal right to autonomy in handling her newborn. This is a baby she has chosen not to keep, so if you force her to take care of the newborn after the delivery you could cause untold psychological damage. Not to mention the harm to the infant and intended parents, who need to bond with each other as early as possible following the birth.”

Ms Jefford says that while autonomy may seem like a straightforward concept, a surprising number of health professionals do not get it right in a surrogacy context.

“Some clinicians simply don’t understand surrogacy laws, while other don’t seem to want to,” she said.

During the pandemic, her clients experienced particular difficulties, with one hospital denying the intended parents any contact with their new baby for the first five days of its life, due to infection risk.

“The intended parents were rightly very keen to be present for the birth of their new child but were denied entry to the hospital due to COVID restrictions.

“Of course, this was a challenging situation, as there was a pandemic to keep under control. But what was striking about this scenario is that the hospital went on to block the telephone number of the intended parents, so that they couldn’t even call in.

“Understandably this caused a very high level of distress for all parties. The surrogate was forced to care for a baby she wasn’t going to keep and the intended family missed out on vital bonding time. A more appropriate response would have been to arrange a private room for the intended parents and their baby.”

Patient autonomy also applies in surrogate pregnancies, creating a range of complexities for health professionals.

“If there is a life-threatening or serious pregnancy complication, the mother will get the final say on whether the pregnancy is terminated, not the intended parents. To some this may seem counter-intuitive, but it falls under the patient’s right to bodily autonomy.”

Under this same right, intended parents are also not allowed to decide whether the mother consumes alcohol, medication, or undertakes risky behaviour during her pregnancy.

“We encourage all parties to discuss this before the pregnancy commences. It is hoped they would all agree, but sometimes they do not. The birth mother may choose to drink an occasional glass of wine and she has the right to do that, even if the intended parents protest against it.

“Likewise, if she experiences antenatal depression, she can choose whether or not to consume antidepressants.”

The issue of privacy can also crop up in the antenatal process, with a number of potentially conflicting interests between the parties.

“Doctors can find the management of health disclosures confusing in surrogacy. For example, if the birth mother is being tested for an STI [sexually transmitted infection], the intended parents may feel they have a right to know, but the patient’s privacy must also be respected. The doctor will need to handle this appropriately at all times.”

Further down the track, conflict can also arise if the mother sustains injuries during the birth.

“Intended parents are legally required to cover any health expenses relating to the birth. However, I know plenty of surrogate mothers that have been shunned by intended parents once they have got their new baby. This has left them out of pocket on injuries relating to the pelvic floor, for example, that require extensive, long term treatment.”

Psychological injury can also occur following a surrogate birth, irrespective of how doctors have handled the antenatal process. The management of these injuries requires specialist knowledge and a tailored approach by psychologists, Ms Jefford said.

“I personally understand how confusing and challenging it can be to hand over your baby after birthing it. At first you might be on a high, which can last several months. But then you could face confusion and dysphoria.

“Not only are you navigating hormonal changes, but there is often a major shift in the dynamic between you and the intended parents. Throughout the pregnancy you could be placed on a pedestal but then all of a sudden discarded once the baby arrives. This can come as a real shock and cause distress to the surrogate mother, who has donated offspring as an act of altruism.”

Ms Jefford says there was a “real lack of guidance out there” when she went through surrogacy, so she created her own guide.

“I would have found it comforting to know that what I was experiencing was normal, so I decided to create a guidebook to help validate the feelings of others in my shoes.”

Ms Jefford has since also launched a highly successful law firm where she works as Director of Surrogacy & Donor Conception Legal Services; and a podcast where she shares intimate details of the surrogacy experience.

Talking more about the legal side of surrogacy, Ms Jefford will present at the upcoming Obstetric Medico-Legal Conference, hosted by Informa Connect.

This year’s event will be held on 7-8 August.

Learn more and register your place here.



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