Definition

The Surrogacy Arrangement Act 1985¹ (amended 1990²) defines a surrogate mother as:

“A woman who carries a child in pursuance of an arrangement:

Made before she began to carry the child and

Made with a view to any child carried in pursuance of it being handed over to, and the parental rights being exercised (so far as is practicable) by another person or persons”

There are two types of surrogacy:

1. Traditional or straight surrogacy. This is where the surrogate uses her own egg, which is then fertilized with the intended or commissioning father’s sperm; this may be done by self-insemination using a syringe or done in an infertility clinic.
2. Gestational, full or host surrogacy. The surrogate carries the commissioning parent’s genetic child conceived through in-vitro fertilization at an infertility clinic.

Legal aspects of surrogacy

Who are the mother and father?

The Human Fertilisation and Embryology Act 1990², Section 27, states that the legal mother is always the surrogate mother regardless of genetic makeup and she is legally responsible for the child until such time as the intended parents adopt or seek a parental order

The legal father depends upon other factors:

• If the surrogate mother is married then her husband is the legal father.
• If the surrogate mother has a partner then he is the legal father, unless he can prove that he did not consent to the treatment.
• If the surrogate mother is single and the treatment did not take place at a centre licensed by the HFEA, then the legal father is the commissioning father.
• If the surrogate mother is single and the treatment took place in a licensed clinic the child is legally fatherless.

Antenatal care

• Inform Head of Midwifery of any known surrogacy arrangements.
• Care should be offered to all involved in a non-judgmental and supportive manner.
• Midwives should ensure that they keep accurate and contemporaneous records of discussions and decisions reached.
• The surrogate mother should attend one antenatal clinic early in pregnancy on her own so that any confidential issues /health information can be shared with health professional.
• Confidentiality is vital and disclosure made on a need to know basis. Any reference to the surrogacy arrangement in the medical records should only be made after discussion with and permission from the surrogate mother.
• The needs of the surrogate mother are always given priority and all (final) decisions rest with her.
• Midwives should inform their Supervisor of Midwives so that they may receive additional support.
• Information to be given to the commissioning parents must be sanctioned verbally by the surrogate mother and documented in the records.
• Meet with surrogate and commissioning parent(s) antenatally, if requested, to identify their plans/wishes with respect to:
  • antenatal screening
  • parenthood preparation
  • birth plan
  • birth partners
  • infant feeding
  • immediate care of baby
  • postnatal visiting/accommodation for commissioning mother. Note: Accommodation is not usually available in the BGH for the commissioning parents. If a request if received please contact the Head of Midwifery.

Intrapartum care

If the surrogate mother agrees the commissioning (intended parents) may be present at the birth. Health care professionals should ensure that the wishes of the surrogate mother remain paramount.

Postnatal care

• The immediate postnatal period is a time of great emotional upheaval, which may be compounded in a surrogacy arrangement and great sensitivity is required in handling both the surrogate and commissioning parents. Where there is conflict the midwife must focus her care on the surrogate mother and baby.
• A child born to a surrogate mother must be registered as her child.
• The commissioning parents, even if they have taken the child, have no legal relationship with it and no rights in law until a parental order has been made or unless the commissioning father is named on the birth certificate.
• The HFEA advises that, until the parental order comes into force, strictly speaking it is the legal mother who should give consent for screening of the newborn.
• Commissioning or intended parents will apply for a parental order (if the genetic makeup of the baby comes from either or both of them) or an adoption order where gametes from either of the commissioning parents have not been used. Until this time (6 weeks – 6 months) the legal mother is the surrogate mother.
• Handing over the baby will take place following discussion and agreement with the surrogate mother. The outcome of this discussion and agreement must be documented in the maternal and neonatal records
• The surrogate mother is cared for as per routine postnatal care guidelines. Her GP is notified of her discharge home.
• The commissioning mother and baby are notified to the appropriate community midwife, public health nurse and GP.
• In Scotland, having the name of the father on the child’s birth certificate will ensure he has full and equal parental rights and responsibilities.

Birth certificate

Issued by the Registrar of Births, Deaths and Marriages. Normally the birth of a surrogate baby will be registered by the surrogate herself and her name will be entered as the mother. The person named as father depends upon certain rules contained with the Human Fertilisation and Embryology Act 1990² and the Registration of Births, Deaths and Marriages (Scotland) Act 1965³.

Birth father

The surrogate’s husband unless it can be shown that he did not consent to the surrogacy.

Birth mother

The legal term for the woman who gives birth to a child as a result of a surrogacy arrangement regardless of whether the child resulted from her egg or not, in accordance with Section 30 of the Human Fertilisation and Embryology Act 1990².

Children (Scotland) Act 1995⁴

The main legislation for matters to do with children and families. Its relevance for surrogacy lies mainly in the principle of parental responsibility and in the availability of parental responsibility arrangements.

Commissioning mother/father

The person(s) who have made an arrangement with a surrogate mother to carry a child for them.

Human Fertilisation and Embryology Act 1990²

For the most part effective from October 1994, this is the main piece of legislation relating to fertility treatment. A Parental Order can be made under Section 30 of the act effectively transferring rights over the child held by the surrogate (birth) mother at birth to the commissioning parents. The act also provides that the surrogate’s husband is the birth father of the baby unless it can be shown that he did not consent to the surrogacy which the act calls ‘treatment’

Law

A number of acts of parliament have a bearing on surrogacy:

• Registration of Births, Deaths and Marriages (Scotland) Act 1965³
• Surrogacy Arrangements Act 1985¹
• Human Fertilisation and Embryology Act 1990²
• Adoption and Children (Scotland) Act 2007 - "the 2007 Act" (in regulation 3 and Schedule 3)
• Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 2010
• Children (Scotland) Act 1995⁴

The court jurisdiction which will be appropriate when a Parental Order is applied for is that covering the area of residence of the applicant couple and the handed over baby.

Registration of Births, Deaths and Marriages (Scotland) Act 1965³

Legislation that relates to registering the births of babies. When registering a surrogate birth, the surrogate should tell the registrar that she is the mother of the surrogate baby in question. It is a criminal offence to give false information to a registrar.

Surrogacy Arrangements Act 1985¹

Legislation to regulate certain activities in connection with arrangements made with a view to women carrying children as surrogate mothers.

References

1. Surrogacy Arrangements Act 1985 Full text
2. Human Fertilisation and Embryology Act 1990 Full text
3. Registration of Births, Deaths and Marriages (Scotland) Act 1965 Full text
4. Children (Scotland) Act 1995 Full text

Bibliography

1. Brazier M, Campbell A, Golombok S (1998) Surrogacy. Review for health ministers of current arrangements for payments and regulation. Report of the review Team. Cm 4068.
2. COTS (1997) Childlessness overcome through surrogacy: comprehensive guide to surrogacy. 
3. Dimond B (1994) The legal aspects of midwifery Books for Midwives Press
4. Human Fertilisation and Embryology Authority (2005/6) Guide to infertility. HFEA
5. Jones SR (2000) Ethics in midwifery. 2^nd Edition, Elsevier Mosby
6. Jones SR & Jenkins R (2004) The law and the midwife. 2^nd Edition p 145-7. Blackwell Publishing
7. Jones, S (2006) Surrogacy: The legal position and the midwife’s duty of care. British Journal of Midwifery 14: 5 p256
8. RCM (1997) Position Paper no 18: Surrogacy: Defining motherhood. RCM
9. Warnock M (1985) A question of life. Blackwell Ltd

Information is available from the following websites:

www.surrogacy.org.uk

www.hfea.gov.uk

NHS Fife & NHS Forth Valley