The body, emotions and intentions: challenges of preconception arrangements for health care providers

Meet with the patient alone to discuss her rights

At the first meeting, the health care provider should excuse the couple or person hoping to rear the child (hereinafter the “commissioner[s]”) from the room, thus permitting a discussion of what role, if any, the pregnant woman would like the commissioner(s) to play. As Reilly recommends, the health care provider should tell the patient that, because the pregnancy is in her body, she alone decides. Likewise, only she can give permission to disclose confidential medical information, and she may change her mind at any stage. The health care provider should focus on developing a trusting relationship with the pregnant woman to address the possibility of coercion. This could occur even among family or friends, for example, by enticement, threat or payment (though payment is expressly forbidden by Canadian law).8 If the arrangement has been documented or payment has been made, the pregnant woman may wrongly believe that she has entered into a binding contract and, therefore, may no longer feel free to determine her future.

The health care provider should continually remind the pregnant woman that Canadian provincial law has always protected a birth mother's right to keep or to relinquish the baby (in the absence of a judicial finding of maternal unfitness). Depending on provincial law, the birth mother has a period of time during which she may change her mind and have the baby returned to her.

If the pregnant woman is carrying an embryo created from another woman's ovum, then she is entering into predominantly unchartered legal territory. In Quebec, she is the legal mother.9 Elsewhere in Canada, the law has not yet been clarified by a court case. But to ask “who is the real mother?” is both illogical and unhelpful when both the ovum provider and the pregnant woman share the role of biological mother. Health care providers should help the pregnant woman reframe the question from the perspective of the most vulnerable party — the child. The important question is “why should either mother be excluded from the child's life?” People who create a family using 3 or more parties should adapt to the fact that the resulting family will not be a traditional one. If the birth mother relinquishes the child, the commissioner(s) should permit the child to have an ongoing relationship with the birth mother for the same reason that adoption professionals now encourage openness: to help the adoptee develop a more complete sense of identity.10

Allowing the pregnant woman to maintain contact with the child after birth would also benefit her. A recent review of the long-term effects on women who give up a child following preconception arrangements suggests that a positive outcome for these women depends, in part, on maintaining relationships.11 According to van den Akker, “most surrogate mothers expected some contact between them to continue following relinquishment of the baby, so that they maintained their new friendships and their children could still see the [resulting baby] ... Unfortunately, in some cases, this contact ceased unexpectedly after the legal proceedings had been completed [which was] seen as a betrayal.”11 This conclusion is corroborated by an earlier longitudinal study that found that the quality of the relationship with the commissioner(s) after birth may influence the degree of long-term satisfaction and regret of women who surrender children in a preconception arrangement.12

Address psychological issues the pregnant woman may be experiencing

Given the intentions when the embryo was created, the pregnant woman may initially be determined to relinquish the child once it is born. But as the pregnancy develops, she may feel and think otherwise. Health care providers need to be attentive to a change of attitude because women's feelings routinely change during pregnancy. This attention is especially necessary given the unusual vulnerability of the parties. For example, the commissioner(s) may expect to be in the delivery room and to be handed the baby before the formerly pregnant woman sees it, and though the pregnant woman may initially agree to this, she may change her mind during the pregnancy.

Health care providers should also be alert to the development of unusual symptoms because a preconception arrangement is, itself, unusual. It requires a pregnant woman to respond extraordinarily and compassionately to the commissioner(s) while suppressing a normal desire to respond ordinarily and naturally to the baby. Such a situation may result in changes in the behaviour of the pregnant woman. The negative effects of the unusual conflict of loyalties and obligations may extend to the pregnant woman's children. Maintaining a relationship with the baby may help to diminish their grief because “It would be naive to think that the children of the incubating family will be unaffected by the loss.”13

Continually review whether the pregnant woman has adequate emotional assistance

Health care providers should also ask the pregnant woman about her psychological support system. If she has a partner, it is important to enquire about the effects of the preconception arrangement on the partner (keeping in mind that the partner's consent is not relevant to the pregnant woman's medical treatment).14 The pregnant woman's partner must make accommodations for the woman's physical and psychological changes, but because a third party fathered the fetus, the partner may feel excluded, resentful and jealous. Such feelings might be exacerbated if the birth mother chooses to keep the child. The preconception arrangement has the potential to end their relationship. As in other pregnancies, medical practitioners should also be alert to any signs of abuse.15