Surrogacy pregnancy and birth during COVID has been stressful for many surrogates and intended parents. Hospitals have restricted the number of support people allowed to attend birth, and limited visitors and even forced non-birthing parents to leave shortly after the birth.

If you are exploring or part-way through a surrogacy arrangement overseas, you can read more about how the COVID pandemic has impacted international surrogacy pregnancies, birth and travel for intended parents.

The pandemic has also impacted cross-border surrogacy teams, with intended parents faced with challenges to be with their surrogate during pregnancy and birth, and many teams having treatment delayed.

For Australian surrogacy arrangements, COVID restrictions in hospitals have had a huge impact on the pregnancy and birth arrangements. Many hospitals have limited support people to one – failing to recognise that this keeps the parents from seeing their baby born. Restrictions that require support people to leave shortly after the birth prevents intended parents from being in the hospital to care for the baby. In several instances, surrogates have been told that they must care for the baby in the hours and days after the birth, because the intended parents are not permitted to be there.

COVID has changed everyone’s lives, and I’m not suggesting that restrictions, particularly in health and hospital settings, shouldn’t be applied to keep us all safe.

However, applying the COVID restrictions to a surrogacy pregnancy or birth or care of the newborn in the same way as regular births, is unacceptable. Healthcare workers and hospitals need to understand that the person who is pregnant and giving birth is not always the parent, and doesn’t always want to care for the baby. And, that parents are not always in two-parent families where one of them is giving birth.

Intended parents and surrogates may need to think creatively about how to manage their surrogacy and support each other during the COVID pandemic.

Surrogacy birth must be recognised as unique, and requiring a unique approach. Surrogates generally don’t mind showering the baby with cuddles and love, but are not interested in parenting the baby,  and nor should they have to. Surrogates cannot be forced to care for a baby they do not consider to be their own and have no intention on taking home with them.

Children have a right to be cared for by their parents. It is in their best interests that babies are cared for by their parents, and receive all the care from their parents regardless of who births them.

What does the law say?

Legislation in several States, including Victoria, ACT and Queensland, provides specific protections for families and children. The Charter of Human Rights and Responsibilities Act in Victoria provides that families are the fundamental group unit of society and are entitled to be protected by society and the State, and that every child has the right, without discrimination, to such protection as is in his or her best interests and is needed by him or her by reason of being a child.

Similar provisions exist in the ACT and Queensland legislation. Thankfully, drawing attention to these provisions has proved successful with several hospitals managing a surrogacy birth recently.

While there are no explicit protections of a surrogacy pregnancy, birth or family, there are some principles that healthcare providers and hospitals need to consider when supporting a surrogacy birth. These principles apply regardless of the COVID pandemic and restrictions:

  • The birthing person does not want to parent the child, and cannot be forced to provide any care-giving for the child.
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  •  The birthing person is entitled to bodily autonomy, privacy and respect.
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  • The baby is a separate entity to the birthing person. They are entitled to all the rights provided to every baby, and all the protections granted to them, by reason of being a child.
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  • It is in a child’s best interests that they be cared for by the intended parents. Giving birth is not a criteria for being a parent, nor should it be the reason someone is expected to provide care.
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  • To ensure all children are treated equally, babies born through surrogacy should be cared for by their parents, and their parents allowed to be present at their birth and provide immediate and ongoing care for them. Parents should also be provided with supports including parent-craft and education regardless of whether they birthed the child. Treating babies born through surrogacy as different to babies born in other circumstances is discriminatory.

Hospital management of a surrogacy birth is often challenging even without the COVID pandemic to deal with. Surrogacy birth planning requires considerable thought for how everyone will be involved and supported to make sure everyone has a positive experience.

Surrogacy counsellor Katrina Hale and I discussed surrogacy birth planning on the Podcast in Episode 64, which is helpful for surrogacy teams and healthcare workers.

Angela and Kirsty are an intended mother and surrogate in Queensland and spoke to me for Episode 96 of the Podcast about their experiences with pregnancy and birth planning during COVID.

If you need assistance navigating hospital policy and planning a surrogacy birth, give me a yell and let me know what you need.

If you are new to surrogacy, you can find more information in the free Surrogacy Handbook, reading articles in the Blog, by listening to more episodes of the Surrogacy Podcast.

I have published a book, More Than Just a Baby: A Guide to Surrogacy for Intended Parents and Surrogates, the only guide to surrogacy in Australia.

Hi! I’m Sarah Jefford. I’m a surrogacy, fertility and family lawyer. I’m also an IVF Mum, an egg donor and a traditional surrogate, and I delivered a baby for her Dads in 2018.

I advocate for positive, best practice surrogacy arrangements within Australia, and provide support and education to help intended parents make informed decisions when pursuing overseas surrogacy.

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