Care in surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales – GOV.UK

Introduction

This guidance does not override the individual responsibility of healthcare professionals to make appropriate decisions according to the circumstances of the individual patient in consultation with the patient and /or carer. Healthcare professionals should be prepared to justify any deviation from this guidance.

Some couples may require the assistance of a surrogate in order to create a family. Surrogacy is when a woman carries a child for someone who is unable to conceive or carry a child for themselves.

This guidance applies to all healthcare professionals irrespective of grade, level, location or staff group.

This guidance document applies to England and Wales only. The legislation relating to surrogacy is UK-wide but there are different approaches to the court systems in Scotland and Northern Ireland.

These are couples who are considering surrogacy as a way to become a parent. They may be heterosexual or same-sex couples in a marriage, civil partnership or living together/co-habiting in an enduring relationship. To apply for a parental order (which is the way that legal parenthood is transferred from the surrogate to the IPs) at least one of the IPs in a couple must be a genetic parent of the child born to them through surrogacy. An individual may also apply for a parental order to transfer legal parenthood if they are genetically related to the child. IP(s) generally prefer to be referred to as the parent(s) of the child.

This is the preferred term for women who are willing to help IP(s) to create families by carrying children for them. A surrogate may or may not have a genetic relationship to the child that she carries for a couple. Surrogates generally do not prefer to be referred to as the mother or parent of the child.

Straight (also known as genetic, full or traditional) surrogacy is when the surrogate provides her own eggs to achieve the pregnancy. One of the IPs, or the IP in the case of an individual applicant, provides a sperm sample for conception through either self-insemination away from a licenced setting or artificial insemination with the help of a fertility clinic. Self-insemination does carry risks if the sperm has not been screened for infections. If either the surrogate or IP has fertility issues or prefers a more clinical environment, then embryos may also be created in vitro and transferred into the uterus of the surrogate.

Host (also known as gestational or partial surrogacy) is when the surrogate doesnt provide her own egg to achieve the pregnancy. In such pregnancies, embryos are created in vitro and transferred into the uterus of the surrogate using the gametes of at least one IP, or the IP if an individual applicant, plus the gametes of the other IP or a donor, if required.

More information about the use of donor gametes is available from the Donor Conception Network (DCN) (see section 5).

The Human Fertilisation and Embryology Authority (HFEA) Code of Practice (2017) explains that all parties involved in the surrogacy arrangement should be offered counselling to discuss the implications and potential challenges faced by them when undergoing complex treatment cycles.

The implications counselling should be provided by a suitably qualified counsellor affiliated with the treating clinic.

In the cases when the surrogacy arrangement has taken place without the aid of a fertility clinic, then counselling by a suitably qualified professional should be recommended to both surrogate and IP(s) (including the surrogates partner if applicable) at the antenatal stage.

More information about implications counselling can be found from the British Infertility Counselling Association (BICA) (see section 5).

The following key principles underpin the development of this guidance and how people involved in surrogacy would hope to be treated.

Altruistic surrogacy is a positive option for those seeking to start a family through assisted reproduction in the UK.

The safety and health of the surrogate and child will always be of paramount importance.

The vast majority of surrogacy cases are straightforward, positive and rewarding experiences; disputes between parties are very rare.

The actions and attitudes of healthcare staff can have a significant impact on the experiences of surrogates and IP(s). Surrogates can be stigmatised and IP(s) have often been through distressing experiences before turning to surrogacy, so compassion, dignity and sensitivity are important. Perceived negative attitudes can cause particular stress or distress.

Surrogates and IP(s) should be treated in the same way as any other patients accessing healthcare during pregnancy and birth while recognising that there may be particular characteristics, such as LGBT+ status, that may require a more tailored approach.

A co-ordinated, consistent but flexible approach is important, where all staff are aware:

It is important to ensure the involvement of all parties in information-giving and decision-making wherever safe and practicable to do so, if this is something the parties have agreed to.

Surrogacy should have comprehensive, trust-based agreements between the surrogate and IP(s) (known as surrogacy agreements), which cover most eventualities and desired outcomes; these should be reflected in birth plans and engagement with healthcare staff.

It would be usual practice for the IP(s) to be treated as the parent(s) of the child, subject to the agreement of the surrogate (and her partner, if she has one), and that the surrogate does not see herself as the mother.

Altruistic surrogacy is an established and legal way of creating a family in the UK. Surrogacy agreements are not legally enforceable and the IP(s) need to apply for a parental order after their child is born in order to become the legal parent(s) of the child. The legal framework allows for a surrogate to receive reasonable pregnancy-related expenses from IP(s), as assessed by the family court.

Surrogacy through commercial means, however, is illegal in the UK (Surrogacy Arrangements Act 1985) and therefore it is an offence for an individual or agency to act on a profit-making basis to organise or facilitate surrogacy for another person. Any persons or organisations that organise or facilitate surrogacy must do so on a non-commercial basis. Where staff have suspicions that there is a commercial arrangement, they should contact their lead for safeguarding children for further advice and guidance.

The surrogate is the legal mother of the surrogate child from birth until legal parenthood is transferred to IP(s) through a parental order made by a family court. If the surrogate is married or in a relationship, her partner will also assume legal parenthood status of the child from birth until the parental order is made. IP(s) can start the process to obtain a parental order from 6 weeks until 6 months after the birth if certain criteria have been met, including the child being in their care, having the consent of the surrogate and at least one IP or the IP, in the case of an individual applicant, being genetically related to the child. The parental order process is normally straightforward and it is usual for a child to be cared for by the IP(s) from birth (with the surrogates consent).

If the conception in a surrogacy arrangement takes place in a licenced clinic and the appropriate consent forms are completed, if the surrogate is not married, the IP who provides the sperm can be registered as the legal father on the birth certificate. A parental order would still be necessary to transfer the legal parenthood of the second IP, if there are 2 IPs.

A surrogacy agreement is a document often drawn up by surrogates and IP(s) (prior to conception) that sets out how the parties intend to:

A comprehensive surrogacy agreement would cover all eventualities and decision-making events, for example how the termination of a pregnancy should be handled.

While surrogacy agreements are not legally enforceable and do not override other legal obligations, they can be used by staff to guide the provision of healthcare to the surrogate, IP(s) and child. A surrogacy agreement may also contain information on non-healthcare related matters and so staff should handle the document with sensitivity and treat it as confidential patient information.

The guidance in this document assumes that a comprehensive surrogacy agreement has been prepared by the surrogate and IP(s) and made available to staff. If this is not the case then the parties should be encouraged by staff to prepare one and be advised that support is available, should they wish for it, from one of the national altruistic surrogacy organisations (Surrogacy UK, COTS, Brilliant Beginnings and My Surrogacy Journey see section 5).

Healthcare staff have a duty of care, as when supporting any other pregnant woman, to the surrogate and they should ensure that she has given her consent to any agreement regarding her care. Staff may wish to consider contacting the lead for safeguarding children for further advice and guidance if they have any concerns.

During care provision, best practice should be observed with the surrogate having an opportunity to be seen alone by a healthcare professional. This affords opportunity for routine and confidential discussion regarding social concerns (that is, domestic abuse), physical or emotional well-being or any issues that may not otherwise be disclosed if accompanied.

In surrogacy, it is common for the surrogate and the IP(s) to agree that any information sharing by healthcare staff should include both parties. The approach that they have agreed will normally be set out in their surrogacy agreement. However, since the surrogate has a right to confidentiality, great care should be taken to understand what information she has agreed may be shared with the IP(s). If the parties have not included this point in their surrogacy agreement, they should be encouraged to discuss it and to record it in their agreement.

Staff should make sure that any consents to share information are recorded, and they should take care to confirm any point where confidentiality may be an issue.

While a breach of patient confidentiality can be justified in certain circumstances such as in a medical emergency or when a healthcare professional has serious concerns regarding the welfare of the surrogate, intended parent or the child, such circumstances are very limited and are subject to strict criteria. For example, following the correct reporting and escalation processes applicable to your area of practice and your working environment, in most cases a senior member of staff or line manager should be the first person to whom a potential issue is escalated.

Disputes in surrogacy are rare. Where the parties are being supported by one of the national altruistic surrogacy organisations, the organisation will usually offer assistance and support to help resolve any difficulties. Healthcare professionals should attempt to work with the surrogate and the IP(s) at all times. However, in the event of an unresolvable dispute, the surrogates wishes must be respected, regardless of what is set out in any surrogacy agreement or consents that may previously have been provided.

If the surrogate changes her mind and wishes to keep the child herself or no longer wishes to transfer the child to the IP(s), then staff must respect this and should ensure accurate notes of the circumstances are kept. If the IP(s) want to challenge this situation, then it will be a matter for the family courts to decide.

If the IP(s) change their minds and no longer want to keep the child, then parental responsibility remains with the surrogate as the legal parent of the child (and her partner if she has one). In the event that the surrogate is not prepared to take responsibility for the child, then social services should be contacted in the usual way.

If staff have any concerns about the welfare of the child, they should follow standard procedures for making a risk assessment, involving other appropriate agencies and invoking child protection procedures (if applicable). A welfare of the child assessment should have been carried out for any fertility treatment, in line with the HFEAs Code of Practice.

Staff may wish to consider contacting the lead for safeguarding children for further advice and guidance if a dispute continues or a concern arises.

It is essential that the surrogate has the mental capacity to consent to surrogacy and to make decisions about her care and that of the child post-partum. Should staff have any concerns regarding the mental capacity of the surrogate, then a formal assessment of capacity should be performed (staff are advised to follow the Trusts consent policy). In the event that the surrogate lacks capacity to provide her consent or to make a particular decision, then treatment should be given having regard to the best interests of the surrogate. However, staff are advised to consult the trusts lead on mental capacity, taking into account the Mental Capacity Act 2005, prior to administering non-emergency treatment in such circumstances. As part of this process, the adult safeguarding team should be involved and an assessment of need/support undertaken and action taken accordingly.

The surrogacy agreement should be clear as to whether the surrogate agrees to IP(s) being the sole decision makers for the care of the child from birth. In rare cases, healthcare staff may have concerns regarding the mental capacity of the IP(s). This may arise during the pregnancy or when the child is born. In this situation, further advice will need to be sought with regards to adult and child safeguarding assessments. The lead midwife, obstetrician and named nurse/midwife for safeguarding must be informed and a multi-disciplinary team review is advised, taking into consideration guidance and potential for deprivation of liberties. In such rare situations, the child will remain in the care of the surrogate until the IP(s) have been counselled and seen by a clinics counsellor (or a psychologist), social worker and members of the mental health team to make a clear assessment of their mental capacity. If the child cannot be cared for by the surrogate, childrens services will need to be involved and an interim arrangement facilitated.

Antenatal care should be delivered in accordance with relevant clinical guidance which is based on individual risk assessment, in the usual way. Requests set out in the surrogacy agreement or agreed between the surrogate and the IP(s) should be considered and accommodated, wherever possible (that is, who will be present during consultations).

If a written surrogacy agreement has not yet been prepared, or if it does not adequately cover antenatal care, then the surrogate and IP(s) should be encouraged to create one. Staff should be satisfied that the surrogate consents to the sharing of data/medical information and /or attendance at appointments.

The Code of Practice guidance from the Human Fertilisation and Embryology Authority sets out the expectations for fertility clinic screening and outlines the requirements for testing for HIV and Hepatitis as well as other transmissible infections. Guidance for this screening has also been produced by The American Society for Reproductive Medicine and highlights that parties should consider screening for transmissible infections prior to conception (ASRM 2016).

Where treatment has been provided in a licensed fertility clinic, the gamete providers will be tested for HIV, hepatitis and other transmittable infections. They will also be screened for blood karyotyping and cystic fibrosis, as well as other applicable genetic tests. The surrogate will also be tested for these infections, as part of the patients screening requirements. Sperm is required to be quarantined for 6 months.

With self-insemination, however, there is a risk of transmission of infection to the surrogate and/or unborn child. It is therefore important that the surrogate (and her partner if she has one) is advised of this risk and offered testing accordingly, prior to or after conception. The IP(s) should be included in this counselling and decision-making if the surrogate has given her consent.

If the surrogacy is supported by one of the national altruistic surrogacy organisations and self-insemination is to be used, then parties are likely to have undertaken screening prior to joining. A risk could still exist at the point of conception, however, so this guidance recommends that the surrogate and intended father be tested again prior to self-insemination, if that is the method used.

Should the surrogate be identified as having a transmittable infection, then the usual counselling should be given regarding the risks of transmission of infection to the child and any recommended steps at birth to minimise the risk of transmission. Where the surrogate has given her consent, the IP(s) should be included in this counselling. Where one or both of the IPs, if there are 2 IPs, is identified as having a transmittable infection, then they should be informed and advised to seek medical advice and treatment.

All applicable and routine antenatal screening tests for abnormalities will be offered to the surrogate in the usual way. Should any abnormalities be identified, staff should discuss this with the surrogate and, where the surrogate has given her consent, the IP(s) should be included in counselling, decision-making and information sharing.

Where a termination of pregnancy is being considered and the relevant legal conditions are met, the surrogate makes any final decision about a termination. If the surrogate discloses that she is considering termination, then she should be referred to a counsellor and the relevant healthcare professionals in accordance with the gestation period of the pregnancy. The IP(s) should be included in this counselling, information sharing and decision making if the surrogate has given her consent.

A surrogacy birth plan is normally prepared by the surrogate and IP(s), often as part of the surrogacy agreement. This sets out the many issues commonly found in birth plans, such as:

Every effort should be made to accommodate all reasonable requests, making sure that other existing policies and procedures do not have the unintended consequence of blocking the wishes of the surrogate and IP(s).

In the absence of a completed surrogacy birth plan, staff should work with the surrogate and the IP(s) (if the surrogate has given her consent) to develop one. For surrogacy supported through the national altruistic surrogacy organisations (Surrogacy UK, COTS, Brilliant Beginnings and My Surrogacy Journey), surrogates and IP(s) will usually have access to a surrogate birth plan template that covers the points listed in Annex B.

With the agreement of the surrogate, a copy of the completed birth plan should be filed in the hospital records and brought to the attention of the Head of Midwifery. It is also good practice to request a copy of the treatment summary if the conception took place in a fertility centre.

Whether a vaginal birth or a caesarean section birth is planned, the surrogate and the IP(s) should be supported by healthcare staff to outline, in the surrogacy birth plan, if the surrogate wishes for the IP(s) to be in attendance. Early planning by healthcare staff should enable such preferences to be discussed and accommodated, with acceptance that it is equally important for the surrogate to be supported by her chosen birth partner as it is for the IP(s) to be present during the birth of their baby. Where possible, such requests should be accommodated to promote immediate bonding between the IP(s) and the baby, with skin-to-skin contact also being supported.

The birth plan should also outline the wishes of the surrogate and the IP(s) should transfer to the operating theatre be necessary (that is, if an instrumental delivery or an emergency caesarean section is required). Ultimately, under these circumstances, it should be accepted that the health professionals will make the decision with regards to who can be in attendance in accordance with clinical care needs being prioritised.

Postnatal care related to a surrogate birth will usually be very different to other births. Often the surrogate will consider her role to be finished after the birth and wish to be discharged independently of the child. Usually the child will be fully cared for by the IP(s) from birth and so parenting support, advice and decision making should be directed to them until they are discharged with the child. While this is what often happens, it is not universal and it is very important to ensure that the parties agree (this is likely to have been agreed in advance and set out in the surrogacy agreement if there is one). In the event that staff have concerns about the welfare of the child, they should ensure that these are raised and actioned in accordance with the appropriate safeguarding policies. If a surrogacy agreement hasnt yet been prepared or doesnt cover the full range of issues, the surrogate and IP(s) should be encouraged to complete one.

Every effort should be made to fulfil all reasonable requests regarding post-natal care, which may include a desire for the surrogate and IP(s) (with child) to be accommodated separately, but with access to each other after the birth. Wherever possible, it may be advantageous for surrogates and IP(s) to be accommodated away from the other mothers on the post-natal ward to maintain privacy at a sensitive time. Attention should be given to ensuring that other existing policies and procedures dont have the unintended consequence of blocking the wishes of the surrogate and IP(s), for example: the need for the child to be cared for by one or both IP(s), if there are 2 IPs, should not be limited by normal visiting hours or restrictions on overnight stays (previously this has been found to be an issue for male, same-sex IPs).

Since the surrogate remains the legal mother at birth, staff should ensure they are satisfied that she consents to the provisions within the surrogacy agreement and that the postnatal arrangements, including any delegations she has made to the IP(s), are written clearly in the medical notes. While it is often the case for a surrogate child to be transferred to the IP(s) at birth, the written consent of the surrogate should be provided if the child is to be discharged with the IP(s) and independently of her. If the child and surrogate are discharged at different times and the child is not already being cared for by the IP(s), transfer of the child to the IP(s) should happen in an appropriate place on the hospital premises. In other words, the parties should not be forced to leave the premises in order to complete this transfer. Under no circumstances should the child be discharged with the IP(s) without the surrogates consent. However, there is no need to inform a social worker or lead for safeguarding unless staff determine that either party may be experiencing difficulty or there is some other reason that staff consider a social worker should be contacted.

Where the surrogate has given her consent for IP(s) to care for the child and this has been included in the surrogacy arrangement, it is usual practice for the IP(s) wishes to be considered by staff regarding the treatment of a sick child and for them to be included in any important decisions regarding the health of that child while recognising that the surrogate has the overall responsibility until a parental order has been issued (BMA 2008). The written consent of the surrogate should be provided which delegates treatment-related decision-making to the IP(s) and this should be clearly recorded in the medical notes again taking into consideration the legal framework for who can legally make those decisions.

Burrel and OConnor (2013) explore the issues and difficulties surrounding consent in their study into the ethical and medico-legal issues in modern surrogacy, and the difficulties that surrogates, IPs and healthcare professionals face.

As with all other aspects of surrogacy care, however, the surrogacy agreement should be reviewed to confirm that this is the approach the parties wish to adopt. If a surrogacy agreement has not yet been prepared or does not cover the full range of issues, then the surrogate and IP(s) should be encouraged to complete one.

The surrogate should be provided with all discharge information relating to her aftercare. This includes information about follow-up care and appointments which may be via the community midwife, GP or hospital team. When discharged from hospital this should be communicated to the community midwife, GP and health visitor in the normal way. While there is no conclusive data on the incidence of postnatal depression in surrogates, The Royal College of Psychiatrists (2017) suggests that of all postnatal women, there may be an increased risk of a degree of postnatal depression from 1 to 2 months following the birth. For this reason, access to a community midwife should be encouraged for 28 days or more if required for the surrogate and health visiting staff made aware.

The IP(s) and child will require a community midwife to visit them and the childs discharge should be communicated to the community midwife, health visitor and GP in the normal way. If this is an out-of-area discharge then the IP(s) address and telephone number along with names and contact details of their local hospital, community midwives, health visitors and GP details should be recorded in the antenatal records.

The health visitor and team will continue to monitor the childs progress as is routine for any child born in the UK. They will also assist and offer advice to the IP(s) with regards to postnatal depression (as above) and how the new family is coping and settling in. There is no reason to consider that families formed following surrogacy arrangements would be at increased risk of developing problems with coping (they are often seen as low risk), but routine support and advice will also be required even in low risk cases.

It would be for the GP to consider monitoring the surrogate with regards to post-natal depression and offer support and advice if required. A systematic review covering 8 studies looking at the outcomes of surrogates, children and the resulting families carried out in 2015 stated that no serious psychopathology among the surrogate mothers was noted and for the IPs, no major differences in the parents psychological state were observed (Soderstrom, and the rest 2016).

Both the surrogate and IP(s) may also receive ongoing support and advice from the national altruistic surrogacy organisations, if they are members and choose to do so.

Hospital staff should ensure the timely transfer of information about the child to the community healthcare team where the IP(s) live so that care and support can be picked up locally in a seamless manner.

IP(s) should be encouraged to apply for a parental order. More detail is given in The Surrogacy Pathway on GOV.UK and available from CAFCASS in England and Wales.

The Surrogacy Arrangements Act 1985, Section 2

The Mental Capacity Act 2005

The American Society of Reproductive Medicine (ASRM), 2016. Recommendations for practices utilizing gestational carriers: A committee opinion

The British Medical Association (BMA), 2008. Parental responsibility, Guidance from the British Medical Association

The Human Fertilisation and Embryology Authority (HFEA), 2017. Code of Practice.

Burrell, C and OConnor H., 2013. Surrogate pregnancy: ethical and medico-legal issues in modern obstetrics. The Obstetrician and Gynaecologist [e-journal] 10.1111/tog.12010.

Antilla Soderstrom V, Wennerholm UB, Loft A, Pinborg A, Aitomaki K, Romundstad LB, Bergh C., 2016. Surrogacy: Outcomes for surrogate mothers, children and the resulting families a systematic review. Human Reproduction Update, [e-journal] 22(2), pp. 260-276.

The Adoption and Children Act 2002

DCN, 2017. The Donor Conception Network, Supporting families through donor conception.

The Royal College of Psychiatrists, 2015. Postnatal depression

The following checklist should be adhered to for all surrogate births. A thorough risk assessment should be carried out, and any reasons or potential problems that may deviate from the usual surrogacy pathway should be documented clearly.

Please ensure that the following information is collected and documented in the pregnancy records during the antenatal period:

Ensure that a birth plan is completed with the surrogates (and IP(s) if appropriate) wishes for the birth/postnatal period, which should include the surrogates wishes for the IP(s) (for example, whether to be present at the birth/during postnatal inpatient stay).

Ensure that preferred terminology is agreed with both the surrogate and IP(s) and clearly documented in the maternity notes.

Ensure that all parties are aware of how medical consent and informed consent works.

Clearly document all aspects of surrogacy including what the surrogate and IP(s) have agreed in terms of participation and decision-making.

Clearly document any consents that the surrogate has given, for example consent to share information with the IP(s) and parenthood consents.

Ensure that full contact details for the IP(s) are recorded:

Address / fax / telephone numbers for the following:

Ensure that the birth plan is discussed with the midwife caring for the surrogate and that all team members have had the opportunity to read the notes and are aware of the situation.

Ensure that the surrogates wishes for the IP(s) are clear (for example, whether to be present at the birth/during postnatal inpatient stay).

Ensure that the postnatal ward staff are clear of the surrogates wishes relating to the IP(s) and a realistic expectation regarding plans for accommodating the surrogates wishes, and those of the IP(s) is achieved.

Ensure that the agreement between the surrogate and IP(s) regarding the care of the child is clearly documented in the maternity notes and the new-born notes and clearly record any necessary consent by the surrogate for the IP(s) to make decisions about the baby (note that the existence of a surrogacy agreement does not override any subsequent decision by the surrogate who remains the childs legal mother until parenthood is transferred).

Check discharge details for the IP(s):

Address / fax / telephone numbers for the following:

To ensure that both the surrogate and child receive follow-up care in the community, please:

Staff should ensure that correct protocols are followed as explained in the guidance if any concerns arise with regards to the surrogate, IP(s) or child.

Aim: to ensure that maternity care is appropriate for both the surrogate, as the woman receiving care, and IP(s) and to ensure that communication between them and the multi-professional maternity team is facilitated.

See more here:
Care in surrogacy: guidance for the care of surrogates and intended parents in surrogate births in England and Wales - GOV.UK

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