Ms Fiona Duffy:

If somebody is going abroad for surrogacy, we have no control over whether it is a pre- or post-birth order. They are stuck with whatever the regime is where they go. We could have control over domestic surrogacy but not in terms of what happens abroad. In the US, most orders are pre-birth orders but it is possible to get a post-birth order. To a large extent, because there is no regulation or strict law, you have to keep evolving and deciding on different methods of dealing with this. Recently, I have leant more towards asking clients to get a post-birth order. In Florida, for example, there is a pre- and post-birth order system. The pre-birth order involves the court looking at the agreement entered into and accepting its validity. Then it sets out directions for what is to happen as soon as the child is born. The court accepts jurisdiction for dealing with it but gives directions to doctors and institutions as to who they might take instructions from in respect of a child as soon as the child is born. The post-birth order is done before the registration and is a final confirmatory order. It is done shortly after birth. The advantage of the pre-birth order is it gives more certainty to doctors, for example. Mary Wingfield referenced this when she was before the committee.

I am dealing with the case of a child due in this jurisdiction through surrogacy. There is a debate between the intending parents and the hospital as to who will give instructions when the baby is born. There is a desperate difficulty for the intending parents because it is their child and the surrogate mother wants them to have the child, but the hospital is saying she is the mother under law and it will only take instructions from her. One possibility is having a pre-birth order system here. I know I am deviating into Irish law but there is provision in the AHR Bill for the appointment of intending parents as guardians. However, it is not clear. I would like to think it could be done before the baby is born so they would automatically be guardians when the child is born and could make those decisions.

That is probably being too optimistic. It has to happen, however. One cannot have that grey area as soon as the baby is born.

As regards the autonomy of the surrogate mother, in the agreements I have seen abroad, the surrogate mother has absolute autonomy in respect of everything to do with the pregnancy. It is once the baby is born that the authority or instructions of the intending parents should be accepted.