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The issue of surrogacy is a controversial one. The World Health Organization Commissions as well as Canada Public Health Officers have recently issued reports on health care and surrogate pregnancy. As a result, this paper will analyze an article about surrogate pregnancy together with the Health Care Act. The purpose of this paper is to review the article and the law that applies. In this case, it is the health care law involving ethics. Therefore, the paper will entail a discussion about consent, confidentiality, autonomy as well as patients rights.
The article surrogate pregnancy: a guide for Canadian prenatal health care providers by Reilly (2007) discuss the challenges faced by health care professionals as they provide care to women with surrogate pregnancies. This is for the reason that surrogacy is not only a normal physiological process but also a confidential communal arrangement between the surrogate and the commissioner. As a result, the issue of ethics arises. This put the health care provider in an ethical dilemma when faced with a situation in which he or she has to make decision between commercial and altruistic surrogacy.
Reilly (2007) explains that the ethics surrounding surrogacy regard autonomy, peoples right to self-fulfillment, consent and privacy. Those in favor of commercial surrogacy argue that a ban of surrogate pregnancy is an interference with autonomy. On the other hand, those in support of altruistic surrogacy argue that it is immoral to commercialize surrogate pregnancy. This is because they compare commercialization with prostitution. Besides, commercialization of surrogacy reduces the bond that exists between a child and a parent. Despite these differences, various countries have laws that regulate surrogacy.
In the United Kingdom, altruistic surrogacy is legal while in Egypt it is illegal. According to Reilly (2007), Canada has various acts and laws concerning surrogacy. For instance, the Assisted Human Act deals with commercialization of surrogacy. Moreover, laws concerning ethics play an imperative role in the provision of care to a surrogate pregnant mother. For example, the surrogate mother right to autonomy, confidentiality and consent guide the health care provider when offering antenatal and postnatal care. Therefore, the health care professional and the surrogate mother need to be familiar with the law that applies.
According to Reilly (2007), Canada has an Assisted Human Act that provides a legal framework for the management of mothers with surrogate pregnancy. According to this act, it is a crime to offer any form of payment to facilitate surrogacy. This means that the issue of surrogacy is still under debate. Therefore, it is not clear whether surrogate pregnancy is legal in Canada. Besides, the court may not have a say in the event that the surrogate mother does not want to give the infant away or the child has disability and the commissioner refuse him or her. It is evident that the law addressing a conflict between the surrogate and the commissioner is not valid.
The law of Canada is precise about the person who makes decision during pregnancy (Canadian Government, 2005). For instance, the sovereignty law confer women the freedom to reverence as well as independence. Reverence means that they require respect to their body and mind while independence means that they can make their own decision. Additionally, the law states that fetus is a component of the expectant mother body. Therefore, the basis of the right to decision making that affect a woman body is ethical respect. As a result, health care professionals must obtain consent from the surrogate as well as respecting her ethical rights.
In the event that the surrogate mother does not want to make decision, she must get a lawful opinion. This is because the Canadian law does not state whether the surrogate has the ability to surrender her autonomy to the commissioner (Reilly, 2007). Besides, the issue of whether the commissioner would act in the surrogate interest is blurred. For instance, the decision of the commissioner can be under the influence of a conflict of interest between the surrogate and the fetus. Thus, the health care professional should ascertain that the decision of the surrogate is not under the influence of the commissioner.
According to Reilly (2007), the surrogate has a right to confidentiality. This means that she can decide on the information that the care provider can expose to other people. Therefore, a problem arises when a child is born because he or she is a different person with his or her own rights. This is because the Canadian law is not clear as to whether the surrogate or the commissioner should speak for the child. Hence, the health care provider should seek legal as well as ethical support when in such a dilemma. For example, the health care professional can use a relevant British Columbia law such as the Health Care Act.
Health Care Act is the law that applies in British Columbia. It concerns the patient consent in a health care facility. According to Keatings and Oneil (2010), consent is the ability of a person to accept a given service. As a result, this act applies to people who are free from psychological illnesses. Since a mother with surrogate pregnancy is psychologically well, the same law applies to her. For instance, the surrogate mother can refuse antenatal and postnatal care.
According to Canadian Government (2005), every adult has a right to refuse treatment, select a particular health service, revoke consent and be involved in planning and implementation of his or her care. Reilly (2007) explains that the surrogate has the right to make informed consent about the medical procedures. This mean that she can refuse a certain procedure and the health care professional must respect her autonomy. Therefore, the health care professional should provide services to consented individuals only. As a result, the consent must be voluntary, relate to the proposed health service and the doctor must not obtain it through coercion.
Additionally, the health care professional must explain to the patient the type of service as well as the advantages and disadvantages associated to that procedure (Canadian Government, 2005). This is important because it help the surrogate to make a sound decision about health procedures. For instance, a surrogate who refuses prenatal screening should be aware of the consequences of her actions to her body and the fetus. Therefore, the doctor should allow the patient to ask relevant questions concerning the prenatal as well as the postnatal procedures.
According to Keatings and Oneil (2010), questions allow the physician to evaluate whether the patient is fit to give consent or not. For instance, through questions the health care provider can know the emotional state of the surrogate. In a situation where the surrogate has mental disturbance, someone else has to give consent. Therefore, the issue that arises is whether the commissioner should consent or not.
The Canadian Government (2005) states that substitute consent is valid in times of emergencies as well as situations where the patient cannot make sound decision for one reason or the other. According to the article, the commissioner can give consent after an agreement with the surrogate (Reilly, 2007). Besides, a legal document must accompany this agreement. Therefore, it is the responsibility of the health care professional to ascertain that the commissioner did not force the surrogate to enter in to the agreement. Furthermore, the health care provider must ensure that the decision made by the commissioner is not out of self-interest but is of benefit to the mother and the fetus. Consequently, the health care profession must rely on information from the surrogate to determine her care. Additionally, the health care provider has the authority of collecting personal information from the surrogate if it will be of value in determining the service that she will receive.
In conclusion, the Canadian Government has not critically addressed the issue of surrogacy. It has concentrated on the ethics like consent, rights, confidentiality and autonomy. As a result, vital matters like commercialization of surrogacy and the rights of the commissioner as well as the child have received little attention. For instance, there is no law that stipulates who should make decision on behalf of the child. Therefore, for effective and efficient delivery of antenatal, postnatal and childcare, the law that deals with the surrogate, the commissioner and the child must exist.
References
Canadian Government. (2005). Various Acts and Regulations of British Columbia. Canada: Queens Printer.
Keatings, M., & ONeil, S. (2010). Ethical and Legal Issues in Canadian Nursing. Toronto: Elsevier Canada.
Reilly, D. (2007). Surrogate Pregnancy: A guide for Canadian Prenatal Health Care Providers. Canadian Medical Association Journal , 176 (4), 479-485.
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