Background

1. In the UK there are no formal guidelines for Obstetricians, Commissioning Parents or Surrogates about pregnancy. There are no Obstetric or Paediatric Registry, audit or pregnancy follow-up.

2. The “contract,” between the surrogate and commissioning couple is legally unenforceable.

Method Under UK jurisdiction, The Human Fertilisation and Embryology Act (HFEA) 2008 Section 33 dictates that the surrogate is the legal mother, irrespective of who donated the egg. This paper discusses a landmark case – (R and Another v An tArd Chlaraitheoir and Ors [2013] IEHC 91).

Result An Irish commissioning couple successfully challenged the HFEA 2008 legal definition of motherhood. - The Birth Registrar’s legal representative argued that the medical records confirmed that the surrogate was the legal mother because she gave birth. - The commissioning couple’s counsel proposed that the child was genetically from the commissioning couple highlighting the sacred mother-to-child blood link bond trumping other factors. - Irish High Court Judge’s Verdict: Set a precedent by making the commissioning/genetic mother the legal mother; therefore allowed her to sign the children’s birth certificate.

Conclusion Surrogacy is increasing because – (1) Advances in assisted reproductive technology, (2) Legislative changes - HFEA Act 2008 part 3 now gives same sex and unmarried couples equal rights as married couples in surrogacy arrangements.

Learning points: (3) Although LEGALLY the commissioning couple can be regarded as the mother, doctors should have no conflict of interest because MEDICALLY the surrogate remains the mother and patient to whom a duty of care is owed.