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

The world of surrogacy can be unfamiliar territory for health professionals, with many clinicians feeling as though they are navigating a legal minefield when managing the care of surrogate mothers. Complexities around health disclosures, antenatal treatments, and newborn care can lead to significant consequences if mismanaged, explains Sarah Jefford OAM, Director of Surrogacy & Donor Conception Legal Services.

"You are playing with the birth mother’s mental health if you don’t recognize her legal right to autonomy in handling her newborn. Forcing her to care for a baby she has chosen not to keep can cause untold psychological damage," Ms. Jefford said.

Autonomy and Surrogacy: A Legal and Ethical Priority

Patient autonomy is a cornerstone of healthcare, and this principle applies equally in surrogate pregnancies. However, many health professionals struggle to apply it correctly in surrogacy contexts.

• Decision-Making in Pregnancy Complications: If a life-threatening complication arises, the surrogate mother has the final say on whether to terminate the pregnancy—not the intended parents.
• Lifestyle Choices: The surrogate mother retains autonomy over her lifestyle during pregnancy, including decisions about alcohol consumption, medication, or other behaviors, even if the intended parents disagree.

"We encourage all parties to discuss these matters before the pregnancy begins, but ultimately, the birth mother has the right to make these decisions," Ms. Jefford said.

Privacy and Health Disclosures

Confidentiality is another area where conflicts can arise. For example:

• STI Testing: While intended parents may feel entitled to know the results of certain medical tests, the surrogate mother’s privacy must be respected.
• Antenatal Care: Doctors must carefully navigate the balance between the surrogate’s right to privacy and the intended parents’ desire for information.

Challenges in Post-Birth Care

The post-birth period can present additional challenges for all parties involved:

• Visiting Rights: Mismanagement of visiting arrangements in birthing units can harm the mental health of the surrogate mother and disrupt bonding between the newborn and intended parents.
• Medical Expenses: Intended parents are legally required to cover health expenses related to the birth. However, some surrogates report being abandoned by intended parents, leaving them to bear the costs of long-term treatments for birth-related injuries, such as pelvic floor damage.
• Psychological Support: Surrogates may experience confusion, dysphoria, or distress after handing over the baby, particularly if their relationship with the intended parents changes abruptly.

"Throughout the pregnancy, surrogates may be placed on a pedestal, only to feel discarded once the baby arrives. This can be a real shock and cause significant distress," Ms. Jefford said.

Lessons from the Pandemic

The COVID-19 pandemic highlighted additional challenges in surrogacy care. Ms. Jefford shared an example where a hospital denied intended parents access to their newborn for five days due to infection risks. The hospital even blocked the parents’ phone number, leaving the surrogate to care for the baby alone.

"A more appropriate response would have been to arrange a private room for the intended parents and their baby," she said.

Supporting Surrogates: Resources and Advocacy

Ms. Jefford, who has personally experienced surrogacy, has created resources to support others in similar situations. She authored a guidebook to validate the feelings of surrogate mothers and launched a podcast to share insights into the surrogacy experience.

"I would have found it comforting to know that what I was experiencing was normal, so I decided to create a guidebook to help others."

Join the Discussion

Sarah Jefford will delve deeper into the legal and ethical complexities of surrogacy at the upcoming Obstetric Medico-Legal Conference, hosted by Informa Connect. The event will take place on 7-8 August.

Learn more and register your place here.

About Sarah Jefford

Sarah Jefford OAM is a Director of Surrogacy & Donor Conception Legal Services and a leading advocate for surrogacy rights. She has personally donated multiple offspring and is passionate about supporting surrogates and intended parents through the legal and emotional complexities of surrogacy. Sarah is also the creator of a guidebook and podcast dedicated to the surrogacy experience.