Considering surrogacy? Your questions answered
What is surrogacy?
1996
A surrogacy arrangement is one in which one woman (the surrogate mother) agrees to bear a child for another woman or a couple (the intended parents) and surrender it at birth. This provides an opportunity for those women who are unable to carry a child themselves to overcome their childlessness.
Distinction can be made between 'partial' and 'full' surrogacy. In partial surrogacy (also known as traditional or straight surrogacy) the surrogate mother provides the egg. The sperm from the intended father will be placed into the surrogate mother’s vagina, either by the surrogate mother herself (self-insemination) or by a health professional and fertilisation will then take place in the usual way.
With full surrogacy (also known as host or IVF surrogacy), the surrogate mother has no genetic link with the child but gestates embryos which are usually created from the eggs and sperm of the intended parents. Assisted reproduction techniques will be used, such as in vitro fertilisation (IVF or the “test tube baby” technique). This involves the collection of eggs from the intended mother and sperm from the intended father and placing them together in a laboratory. One or more embryos will then be placed into the surrogate mother’s uterus for gestation. A maximum of three embryos can be replaced but more often it is limited to one or two to reduce the chance of a multiple pregnancy. If the intended mother is unable to produce eggs herself, an embryo can be created from the sperm of the intended father and eggs from an anonymous donor, again using the IVF technique. Similarly, if the intended father is infertile, an anonymous donor’s sperm can be used to fertilise eggs from the intended mother using IVF. An information leaflet about the technique of in vitro fertilisation is available from the Human Fertilisation and Embryology Authority (Paxton House, 30 Artillery Lane, London E1 7LS).
Who might use surrogacy?
Some women are unable to carry a child to term. A variety of causes account for this, including failure of the embryo to implant, repeated miscarriage, hysterectomy or a pelvic disorder. Some women experience problems such as dangerously high blood pressure, a heart condition or liver disease, so that pregnancy would entail a serious health risk for them.
Some people may come to terms with their childlessness. Others may find adoption or fostering an acceptable alternative, although this option is limited by the number of babies and children offered for adoption. For others surrogacy may be seen as a possible solution. Because surrogacy involves another person taking on the risks of pregnancy, it is only acceptable as a last resort, where it is impossible or very dangerous for the intended mother to carry a child herself.
Sometimes people speculate about women taking part in surrogacy arrangements, although capable of bearing children themselves, because they wish to avoid the physical, social, psychological or financial drawbacks of bearing a child themselves. There is no evidence to suggest that this happens in Britain and it would not be seen as an acceptable use of a surrogacy arrangement.
What is the legal position?
Surrogacy is not prohibited by the law. However, it is illegal for an individual or agency to act on a commercial (ie. profit-making) basis to organise or facilitate a surrogacy arrangement for another person. Agencies or individuals may perform this function on a non-commercial basis and individual surrogate mothers may be paid expenses by the intended parents. All advertising that a person is willing to be a surrogate mother or that someone is looking for a surrogate mother is prohibited.
The law states that any clinic providing treatment involving the donation of eggs or sperm, or the creation of embryos outside the body, must be licensed by the regulatory body, the Human Fertilisation and Embryology Authority (HFEA). Full surrogacy, which involves the creation of embryos outside the body must therefore only be performed in a licensed clinic. Where the insemination with the intended father’s sperm, in partial surrogacy, is performed by a health professional (thus using donated sperm), the premises on which the procedure takes place must also be licensed by the HFEA.
Are surrogacy arrangements legally enforceable?
No. Surrogacy arrangements are unenforceable in law. Therefore, irrespective of whether a contract has been signed, and whether any money has changed hands, either party could change its mind at any time. For this reason, it is particularly important that all parties have considered very carefully the implications of their decision to take part in a surrogacy arrangement. If any of the parties have any doubts about their commitment to the arrangement, they should say so before a pregnancy is established and the arrangement should not proceed.
What is the legal status of the child?
In law, the legal mother is always the carrying mother (ie. the surrogate mother in a surrogacy arrangement). The legal father is rather more complicated. If the surrogate mother has a partner he will be the legal father of the child, unless he can show that he did not consent to the treatment. If the surrogate mother does not have a partner and the treatment did not take place in a licensed clinic (ie. it was self-insemination), the intended father will be the legal father. If treatment was undertaken in a licensed clinic and the surrogate mother has no partner, the child will be legally fatherless.
This has a number of implications. In order for the intended parents to become the legal parents of the child, they must either apply to adopt the child or apply for a parental order (see below). This is true even if they are the genetic parents of the child (ie. their sperm and eggs were used). If the intended parents change their minds about taking the child, for example, if their circumstances have changed or if the child is born physically or mentally disabled and they feel unable to cope, the surrogate mother and her partner, if she has one, will be legally responsible for the child.
What is a parental order and who can apply for one?
A parental order, which is obtainable by application to the courts, makes the intended parents the child’s legal parents. This has the same effect as adoption, but allows a quicker route in cases of surrogacy.
In order to apply for a parental order, the following criteria must be met:
- the child must be genetically related to one or both of the intended parents;
- the intended parents must be married to each other and must both be aged 18 or over;
- the legal mother and father (ie. the surrogate mother and her partner, if she has one) must consent to the making of the order (this consent cannot be given until six weeks after the birth of the child);
- no money other than reasonable expenses has been paid for the surrogacy arrangement unless the payment has been authorised by a court;
- the child must be living with the intended parents and one or both of the intended parents must be living in the UK;
- an application must be made within six months of the birth of the child.
What are the 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. Some medical conditions will prevent a woman becoming a surrogate mother, for example, if there are any known medical problems which could lead to complications with the pregnancy, or put the woman at risk. Also those who are considerably overweight, are heavy smokers, drinkers or substance abusers are not suitable as surrogate mothers because of the associated risks both to the woman and the baby.
As the risks of illness and problems are much higher in the first pregnancy it is strongly recommended that surrogate mothers should have borne at least one child previously and preferably have completed her own family. This also means that the woman is able to give her “informed” consent to the arrangement, since a woman who has experienced pregnancy prior to the surrogacy arrangement has that knowledge on which to base her decision. Only in very exceptional cases should a woman who has not had a child herself consider becoming a surrogate mother. Because of the increased risk of chromosome abnormalities (eg. Down’s Syndrome) resulting from the eggs of an older woman, an upper age limit of 35 years is set for those donating eggs to other women. The same age should therefore apply to surrogate mothers whose own eggs are to be used, and 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 that a woman considering this option has the backing of a partner, family or friends to provide emotional support and practical help throughout and after the pregnancy. Surrogacy is not something to enter into lightly. Careful consideration must be given to the medical, emotional, legal and practical issues, and to the implications of surrendering the child at birth. Thought must also be given to the effect on any existing children, the potential surrogate mother’s partner, family and friends.
What is the level of medical involvement?
The amount of medical assistance required will depend upon the individual circumstances. If in vitro fertilisation is to be used, there will be considerable medical involvement and the treatment will be carried out in a clinic licensed by the HFEA. With partial surrogacy, the insemination will sometimes be performed by a health professional, or medical advice might be provided on the timing of insemination and monitoring of ovulation. Others will choose to use self-insemination which, technically, does not require any medical knowledge or advice. It is, however, strongly advised that those considering self-insemination seek testing for infectious and inheritable or genetic diseases and counselling (see below). It is also advisable for a woman considering surrogacy to discuss the matter with her general practitioner. The GP 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. A report on surrogacy, Changing conceptions of motherhood, the practice of surrogacy in Britain, which gives guidance to health professionals, is available from the British Medical Association (BMJ Publishing Group, PO Box 295, London WC1H 9TE). Read more here.
What is the importance of screening?
In surrogacy arrangements there is a risk that infections such as HIV or hepatitis could be passed to the surrogate mother from the intended parents, through the sperm or eggs. For this reason, it is very strongly recommended that the parties involved should have testing to minimise this risk. Where treatment is given in a licensed clinic, the intended father, and the intended mother if her eggs are to be used, are tested for HIV, hepatitis and other infectious diseases. Usually the sperm or the embryos are stored, in quarantine, whilst repeat tests are carried out, to minimise the risk of passing on any infection. Often, the surrogate mother will also be tested to ensure that she has no infection or genetically transmissible conditions. With self-insemination, it is also strongly recommended that the intended father is tested prior to the insemination. Such tests can be obtained through the man’s general practitioner or from a pathology laboratory in a local hospital. Before consenting to any such tests, consideration should be given to the implications of receiving a positive result.
What are the benefits of counselling?
Although offering to become a surrogate mother for an infertile couple might appear to be an uncomplicated altruistic act, it is not an easy course of action. Equally, whilst the intended parents may see surrogacy as the answer to their prayers they are also likely to have concerns and anxieties about the proposed course of action. All parties must be clear about the implications of their decision before proceeding.
A potential surrogate mother must consider carefully her likely emotional reactions to the developing child, the possibility of miscarriage or termination and the effect of parting with the child if the pregnancy is successful. The intended mother may worry about her potential ability to bond with a child carried by another woman or fear that the surrogate mother will decide to keep the child. Both the surrogate mother and the intended parents will need to consider carefully how they would react if the child was born physically or mentally disabled, how they would wish to proceed and how this would affect the surrogacy arrangement. All of these issues can be aired in counselling. While access to appropriate counselling cannot eradicate all of the anxieties which accompany the uncertainties of fertility treatments generally and surrogacy in particular, specially trained and knowledgeable counsellors can provide reassurance that the varied emotions experienced by people in this situation are not unusual.
Where treatment is provided in a licensed clinic counselling will be available and offered to those taking part in a surrogacy arrangement. Those making their own arrangements should also give serious consideration to seeing a counsellor to help to think through the issues and the implications of the arrangement. Most general practitioners will be able to provide details of the counselling services available in the area, or a list of counsellors can be obtained from the British Infertility Counselling Association (10 Alwyne Place, London N1 2NL).
What are the health risks to the surrogate mother?
The risk of transmitting infection, such as HIV or hepatitis, to the surrogate mother from the intended parents has been discussed above. This risk can be reduced by testing and, if the sperm or embryos are quarantined, the risk is very small.
In full surrogacy, when more than one embryo is replaced into the surrogate mother’s uterus, the risk of multiple pregnancy increases. Around 20-25% of the pregnancies resulting from in vitro fertilisation will result in a multiple pregnancy of twins or triplets, depending on the number of embryos replaced. This carries associated risks for both mother and babies and there are serious implications for the intended parents of raising children from a multiple pregnancy. In view of this high risk of multiple pregnancy, careful consideration should be given to the number of embryos to be replaced.
Surrogacy pregnancies are no more likely to have adverse effects on the woman’s physical health than any other pregnancy (apart from risks associated with multiple pregnancy). However, it is important that before proceeding, the surrogate mother is aware of the usual risks of pregnancy. In very rare cases pregnancy can result in maternal death but more frequently less dramatic problems can arise during the pregnancy or in the period after the birth such as: gestational diabetes, high blood pressure, urinary-tract infections, haemorrhage, stress incontinence, painful intercourse and haemorrhoids. It is advisable for the intended parents to purchase insurance to cover the surrogate mother and her family in the event of any misfortune.
There is also a risk that the surrogate mother may suffer from post-natal depression. In addition to the usual factors accounting for post-natal depression, the surrogate mother may also feel a great sense of loss and bereavement at being separated from the baby she has carried for nine months.
Who should make decisions during and after the pregnancy?
Once an arrangement has been made, and before the pregnancy is established, a number of decisions need to be made about how the pregnancy should proceed. Ideally, a joint decision should be reached between the surrogate mother and the intended parents, although there may be times when their views will conflict. It is important that the issues are discussed before the surrogacy arrangement proceeds and it should be clear to everyone involved that the surrogate mother, with the advice of health professionals where appropriate, will make the final decisions during and immediately after the pregnancy.
The type of decisions which need to be made during the pregnancy might include the various tests to be undertaken such as ultrasound or blood tests and tests such as amniocentesis or chorion villus sampling (CVS) to detect chromosome abnormalities. Consideration must also be given, in advance, as to how to proceed if a severe abnormality is detected. If, for example, the intended parents feel they would be unable to look after a child with a severe disability and the surrogate mother is opposed to termination, the parties need to decide how the situation would be managed and, if agreement cannot be reached, the surrogacy arrangement should not proceed. Cases may occur where one party has a change of mind when the situation arises but discussing the matter in advance should minimise the likelihood of this happening.
Decisions will also need to be made about the preferred method of delivery. It is important for all concerned to know if, for example, the surrogate mother wishes to give birth in water or if the intended parents are totally opposed to the use of drugs during delivery. Again, discussion should take place in advance of the pregnancy but final decisions about delivery should be made by the surrogate mother, with the advice of health professionals. Other decisions need to be taken immediately after the delivery about which parents would normally be consulted, such as in the case of a premature birth. Ideally, a joint decision should be reached but the surrogate mother has the right to make decisions about the child immediately after delivery. In the days after the delivery, provided the child has been passed to the intended parents, responsibilities for decision-making should pass to them.
Will the surrogate mother have contact with the intended parents and the child?
This will depend upon the individual circumstances and the wishes of the parties concerned. It is important that this is discussed from the beginning so that problems do not develop at a later stage when the different expectations of the parties become apparent. Some surrogate mothers find it helpful to have the support of the intended parents throughout the pregnancy and equally the intended parents often want to share the experience and be involved with the pregnancy such as attending hospital for scans and possibly being present at, or immediately after, the birth. Others prefer to have limited contact.
Once the child is born the level of contact will again depend upon the wishes of the individuals concerned. In some cases, contact stops, by mutual agreement, as soon as the child is handed to the intended parents, except for the communication required for transferring the legal parentage of the child. In other cases the intended parents will send photographs of the child to the surrogate mothers and in some cases, the child will know the surrogate mother and her own family. What is important is that the surrogate mother and intended parents agree on a level of contact which they feel is appropriate for them.
Who else might be affected by the surrogacy arrangement?
Although the main parties to the arrangement are the intended parents and the surrogate mother, there are wider implications, and before proceeding, the effect on other family members needs to be considered. For example, the surrogate mother’s partner, her parents and any existing children will also be affected. The partner may feel a sense of bereavement at losing the child his partner has carried for the last nine months and unless very sensitively handled, existing children may be disturbed by the loss of a sibling and fear that they also may be “given away”. For the intended parents’ family there may also be anxiety and uncertainty. The child’s grandparents may find it difficult to accept the method of the child’s conception and may treat the child differently from other grandchildren. Other children may find it difficult to accept their new brother or sister and may resent the attention given to the child by their parents. With careful handling all of these difficulties can be minimised but consideration should be given to these issues before deciding to proceed.
What are the implications for the child?
One question which all intended parents have to deal with is whether to tell the child of his or her origins. Research shows that most people who have children conceived by surrogacy decide to explain the circumstances of their conception and birth to the child. If parents 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 in this way, and the discovery of deception by his or her parents, may be very distressing for a child. Another factor to be considered is that at the age of eighteen the child will have the legal right to discover the identity of his or her surrogate mother.
The number of children born as a result of surrogacy arrangements is small and there is a very limited amount of research available into the effects on the child. However, it has been suggested that such children may feel a certain amount of anxiety about being “different” from their friends and may sometimes feel pressure to live up to the expectations of their parents who went to such great lengths to have them. However, these concerns do not appear to reflect the reality for children from other “different” families, such as those resulting from infertility treatment or adoption. More positively it has been suggested that children conceived via surrogacy arrangements may in fact be proud of their parents’ courage and grateful to their parents, and the surrogate mother, for their existence.
What happens now?
Surrogacy might be the only opportunity for some people to have children but it is not something which anyone should enter into lightly. Before deciding to enter into a surrogacy arrangement, either as a surrogate mother or an intended parent, it is important that the information contained in this booklet has been carefully considered and understood. It is a good idea to obtain as much information as possible, take time to reflect on it and, if possible, discuss it with partners, family or friends. Anyone with doubts about their commitment to surrogacy should not proceed any further.