Dr. Andrea Mulligan:

Yes. One advantage of the pre-birth model is that surrogates can say that they do not want to be left with the babies and never wanted to have the babies for themselves. There is that difficulty, but it is a tricky situation and the pre-birth model is too blunt an instrument to deal with it. A better approach is to have a situation whereby the birth mother is still the mother at birth, the intended parents are guardians, and they cannot divest themselves of their rights to the child but she can. It is more nuanced, but a model that does not have pre-birth orders does not mean that the surrogate has to get left with the child, which would be a difficulty.

Speaking more broadly, we must bear in mind that all surrogacy legislation has to contemplate the problem of surrogates changing their minds. It is rare, but it will always be possible, so we have to contemplate what to do in such a scenario. Parental orders can never deal with it because they are fundamentally for consensual situations. The courts will always have to step in where there is a dispute. The State will usually have to step in where there is a dispute. There is no easy solution to the scenario of people changing their minds. With a pre-birth order, we would still have to find a way of squaring the very difficult situation where there has been a change of mind.