Surrogacy Laws Across the Globe: An Overview
One of the greatest challenges facing those who wish to use a surrogate is determining where to find one. Numerous factors, including personal preferences, legal issues and overall cost, affect the final decision.
The current legal status of surrogacy varies greatly around the world, as the following table illustrates:
As this table shows, some countries have completely prohibited surrogacy, while it is completely legal in others. The reasons cited for the bans on surrogacy are mainly ethical in nature, often with the government of the country concerned generally being opposed to commercialized instances of surrogacy. Also, some nations object to surrogacy on the basis that women are less valued in certain cultures and therefore they cannot ethically consent to provide such a service .
On the contrary, some countries permit certain forms of international surrogacy while prohibiting other forms. For example, Canada allows altruistic surrogacy only, which requires that any compensation for a surrogate must be strictly limited to "expenses and inconveniences." Countries such as India and Russia have gained popularity for international surrogacy because they offer more lax restrictions for foreigners.
Other countries, such as France, require some connection to the country to permit surrogacy at all. Still others – such as Brazil, Mexico and Denmark – prohibit surrogacy entirely, so it is unavailable to all intended parents regardless of their nationality.
Countries Where Surrogacy Is Allowed
Israel: The Surrogacy Law was enacted in June 1996 and went into effect in March 1997. Israeli citizens can work with a surrogate mother in Israel or abroad. To have a surrogate pregnancy recognized, at least one of the intended parents must be genetically linked to the child. Surrogacy is primarily defined as being for heterosexual Jewish couples.
Key components:
• Gestational surrogacy arrangements facilitated by third parties are not enforceable under Israeli law. It is an offense to act as an egg donor, surrogate, sperm donor or recipient without a license.
• The surrogate must be Israeli.
• The arrangement must be approved by the Israel courts.
• The commission of an act as a surrogate mother or the making of an agreement entailing surrogacy for a single person is not allowed, nor are surrogacy arrangements that entail commercial surrogacy.
• The law concerning surrogacy is located in the Israeli Penal Law, 1977.
• The surrogate must relinquish all parental rights to the child. However, she is not a stranger to the child, so if she were to have a close relationship, such as a family member, then the Family Court decides whether or not she can have contact with the child.
• The couple must pay their surrogate. However, the surrogate cannot be paid for carrying the pregnancy as a fee for surrogacy services.
• In 2010, the Israeli Supreme Court, in the case of Hotovely et al. v. State of Israel (2010), found that a surrogate mother could contribute eggs nor be entitled to any part of the compensation.
• Surrogacy is for Jewish citizens only.
• Heterosexual Israeli couples qualify for domestic surrogacy, while non-Jewish or same-sex couples are limited to foreign surrogacy.
India: Intended parents are required to enter into a surrogacy agreement with their surrogate and the clinic. If either party has a relative in common with the surrogate, then surrogacy may be viewed as incestuous. There is no maximum number of surrogacies allowed per surrogate. In establishing the surrogate’s compensation and expenses, the law requires that compensation be limited to just what is necessary and consistent with the expenses of living. All parties, including the surrogate, must sign separate legal agreements, which should include counseling, designation of a guardian for the child, alternatives if pregnancy extends past 8 months, and the surrogate’s relinquishment of the child. The surrogate and intended parents must have psychosocial and medical assessments, and there must be a contract with an Indian clinic, surrogate and donor.
Key components:
• Must be Indian citizen.
• Must be married to someone of Indian origin, or a person of Indian origin who is a foreign citizen.
• At least one intended parent must be biologically related to the child.
• Indian surrogates must be aged between 21 and 35.
• Surrogate cannot be paid for pregnancy.
• Compensation for medical expenses and pregnancy-related costs is allowed.
• Compensation should not be much more than these costs of living.
• Surrogacy cannot be arranged to be carried out for foreigners of Indian origin living abroad, Non Resident Indians (NRI) who are foreign citizens or Persons of Indian Origin (PIO).
Georgia: Intended parents and their surrogate must enter into a formal contract before a Georgian notary public. The contract must include clause that stipulates that the surrogate has no parental rights to the baby. Within the contract, there must also be a release of the surrogate’s right to claim damages to her health or potential children that are conceived from the artificial insemination that the surrogate undergoes. All reimbursement and payment for surrogacy expenses and costs must be made before the live birth of the child. Title to the child is granted to the intended parents and the surrogate must immediately give up her parental rights. Once it is registered that the baby is born through a surrogate and the intended parents are the legal parents, the child’s documents will be amended to their names and not the surrogate’s.
Key components:
• Assisted reproduction may be used to help create an embryo
• Legally allowed for intended mother without a living male partner
• Surrogate must be from a different bloodline than the intended parents
Altruistic Surrogacy Countries
Altruistic surrogacy is where a surrogate agrees to carry a baby for a couple where no money changes hands. The surrogate may be compensated for medical costs and other pregnancy-related costs, but these transactions must be well thought out in order to avoid running afoul of trafficking concerns. There are a number of countries that allow altruistic surrogacy, including the UK, Canada, Australia, Nepal, and Russia. However, sometimes there can be limits on how many surrogacies a surrogate can undertake or where the surrogacy can be performed. Further, the surrogate may have to wait a certain amount of time between surrogacies, and even the need for her to be screened for a variety of health concerns. Countries that allow altruistic surrogacy generally do not grant citizenship to the child born through altruistic surrogacy, meaning the embryo has to be created through a heterologous insemination, such as IVF.
Countries Popular for Surrogacy
There are several popular destinations around the world for surrogacy. This is due to a variety of factors including favorable legal conditions, low costs, and efficient medical systems. Here are some of those popular locations:
United States
The United States is a popular choice for many foreign Intended Parents (IPs) as there are several states with Surrogacy arrangements that are legally recognized. These various state guidelines for surrogacy arrangements can lead to a very positive legal framework when dealing with surrogacy. However, this can vary greatly from one state to another and it is very important to have legal representation in order to know what the laws are and whether they are being followed.
India
India has historically been a popular choice for international surrogacy. The country has a reputation for both excellent medical care and low cost medical procedures. Surrogacy was officially banned in India as of 2015 for foreigners. Since that time , it has been difficult for foreigners to pursue surrogacy arrangements in the country.
Ukraine
Ukraine is also a popular surrogacy destination for foreigners. The country has very favorable laws for surrogacy. Surrogacy is legal and well-regulated in Ukraine.
Mexico
Mexico has been a popular choice for many foreigners pursuing surrogacy. Many U.S. citizens were able to go to Mexico for surrogacy arrangements and have them recognized in the United States. However, as of 2016 changes to the law in some Mexican states has made it so only Mexican citizens can use surrogate mothers in these states. This has resulted in many foreigners no longer pursuing surrogacy arrangements in Mexico.
Legal and Ethical Issues
The process of engaging a surrogate in another country (in the USA, for example, independent surrogacy agreements are called gestational surrogacy) with a child you intend to bring home is fraught with legal and ethical challenges. Chief among them are establishing legal parenthood, determining the citizenship of the child and the rights of the respective parties. Many nations do not allow for pre-conception parenthood establishment when the commissioning parents have used an egg or sperm bank. That means the "biological" mechanism of maternity, in particular, is rarely respected. The same limitation exists for at least one UK jurisdiction that forbids the use of third-party gametes. An additional challenge globally is establishing legal parenthood for embryos. While the US grants prospective parents considerable leeway in determining legal parenthood for embryos, other countries do not. In Europe, parenthood is usually established post-birth. The difference in these approaches creates a host of issues in gestational surrogacy cases where both egg and sperm are introduced into a third-party womb. In addition, an additional layer of complexity in international surrogacy arises from the fact that the parents are often not married in countries where both premarital cohabitation and child-bearing are stigmatized. A situation where a married couple has a biological child through third-party reproduction is very socially acceptable, and appeals to many biologists, who recognize that the genetic makeup of a child is arguably the most important component of their identity. Hence, those in the biomedical field have been less inclined to contemplate or investigate the social and moral ramifications of, for instance, a two-mommy family where neither lady is related genetically to the child.
Looking Ahead: Future Surrogacy Laws
The trend in recent years has been for an ever increasing number of nations to effectively prohibit any practice of surrogacy whatsoever. The legislation tends to incorporate a criminal prohibition on the practice, with the result that intended parents, surrogate mothers, clinics and lawyers involved in the surrogacy process are all subject to criminal sanctions.
There are a few notable exceptions to the trend. Canada permits altruistic surrogacy, which is clearly defined as surrogacy for no return or exchange, which has a significant impact of reducing the costs associated with surrogacy. In the UK, again altruistic surrogacy is permitted so long as this precedes any out of pocket expenses, however if compensation for the surrogate mother is sought post birth, then approval from the Court must be sought, which can be an arduous and costly process .
For both intended parents and surrogate mother’s the trend toward prohibitive legislation in many countries has resulted in a need for prospective parents to undertake surrogacy internationally, with a resulting high degree of uncertainty associated with the laws both in the host country and in the intended parents own country. Clearly then, with the growth of this option, there will be greater call for international governmental bodies to work towards defining a common (international) standard to ensure that surrogacy is permitted in an appropriately safe manner across global jurisdictions.