Dr. Lydia Bracken:

It is very unusual that a surrogate would change her mind. Looking at UK case law, if the issue was to go to court, the best interests of the child would be paramount. I should say again that if we look at the UK approach, it is a post-birth model, meaning that at birth the surrogate is recognised as the legal mother. In the very few cases where there has been a dispute and the case has gone to court, it does not necessarily mean the surrogate is allowed to keep the child or that care of the child will not still be transferred. In at least two of the three cases I am aware of where an issue such as this has arisen, care of the child was still transferred to the intended parents. The UK operates a very strict model whereby parentage cannot be transferred without the surrogate's consent. She has remained as the legal mother but the courts have recognised that it is not in the best interests of the child for her to keep the child and so the care of the child has been transferred. In some jurisdictions there is a court process to address that, while in others no such process is in place. It is all based on pre-conception intent. It would be a question for the Legislature as to whether it wanted to have, as discussed earlier, that kind of emergency provision for a surrogate who changes her mind.

On reflection, that might go against the ethos of our proposed legislation in terms of it being a pre-conception approach, because one of the advantages of a pre-conception approach is the certainty that attaches to it for all of the parties involved. If there was an opportunity for a surrogate to bring a case after the birth of the child, one is negating that element of certainty, but I suppose that would be a question for the Legislature to determine whether it wanted to have a court provision afterwards.