Surrogacy : – What Does the Law Say?

By (embryologist) and (babygest staff).
Last Update: 12/18/2016

Surrogacy is an assisted reproductive technique in which a woman offers herself to carry another person's child (whether a woman, man or couple).

What should legislation  take into account?

Surrogacy is a controversial technique that fuels a strong ethical debate, mainly because of the risk of commodification of the human body and the baby.

Because of the problem associated with the surrogate, there is clear legislation in only a few countries. In others, case-law is the source of law.

In addition, the laws of countries that regulate surrogacy have many specific features. Some countries allow surrogacy only to compensate for the future mother's medical incapacity, others accept only the altruistic mode, or refuse access to certain family models.

An ideal surrogacy law must take into account the rights of the surrogate, the intended parents but also the baby born by this technique. It is really important to anticipate the difficulties that may arise, so that you don’t be distressed once the process has started.

A general, detailed and specific law is essential. It must contemplate such diverse aspects as:

  • Rights and obligations of the persons involved
  • Steps to follow in case of problems or conflicts: serious malformations or illnesses of the baby, death of one or both intended parents, death of the surrogate during pregnancy, etc.
  • Type of contract
  • Parentage
  • People authorized to use Surrogacy (family model)
  • Choice of the surrogate
  • Compensation for pregnancy

These are only some of the aspects that need to be understood in an appropriate regulation of surrogacy. This is a complex process, involving risks and complications to the health of the surrogate and the unborn baby.

Use of reproductive tourism

There is no international law concerning surrogacy. Each country has its own jurisprudence: in addition to the position adopted with regard to surrogacy in each territory, not all countries accept to receive foreign patients.

Before starting a surrogacy process abroad, it is essential to compare the legal conditions offered by the different countries in order to be able to choose the one that will offer the most guarantees in relation to each person's personal situation.

At the same time, when a country or territory does not even consider this practice in its legislation, i.e. it does not allow it, but it does not prohibit it either, the legal vacuum thus created opens the door to the black market and to the trafficking of surrogate and newborns. Thus, the rights of the surrogate and the baby are the most vulnerable.

In the absence of legal guidance, it is sometimes clinics and professionals in the sector that mark the conditions of surrogacy. This is the case in Belgium, for example: since Belgian legislation does not establish rules, four hospitals currently use this technique, based on the principle that what is not prohibited is de facto allowed. They are the ones who define the limitations that characterize surrogacy in this country.

The prohibitions or lack of regulation of surrogacy in some countries are the cause of reproductive tourism. Indeed, a comprehensive law, regardless of its degree of permissiveness, should also include how to act and determine parentage, when the technique is carried out abroad.

It is necessary to ensure the procedure for having the parentage and nationality of the newborn recognized, once back in the country of the intended parents. That should avoid the legal obstacles that arise when the child is born in a country where surrogacy is an illegal technique.

In some countries where the law expressly prohibits the use of this technique, such as France, counselors and agencies can provide detailed guidance to prospective parents to avoid problems and other unforeseen circumstances.

Currently, the most popular destinations are the United States, Russia and Ukraine.

Many countries in the world prohibit surrogacy. Among them are France, Germany, Spain, Italy, Switzerland, Austria, Norway, Sweden, Iceland, Estonia, Moldova, Turkey, Saudi Arabia, Pakistan, China, Japan and some United States states (New York, Arizona, Michigan, Indiana, North Dakota).

Among the countries where surrogacy is permitted, the United States is a key destination. However, it should be noted that the USA, like Australia, does not have uniform legislation throughout its territory: each state has its own laws and a different acceptance regarding surrogacy.

In Russia and Ukraine, the law allows this assisted reproduction technique to be performed only in the event of medical incapacity during pregnancy. It therefore restricts access to surrogacy to heterosexual couples and single women (in Russia). Single men and male homosexual couples are excluded.

Some countries, such as India, require by law those who use surrogate to present a special medical visa that is only issued to heterosexual married couples. Now, with the new legislation approved in August 2016, surrogacy is prohibited for foreigners De plus, un projet de loi a été approuvé en août 2016 pour interdire l'accès aux étrangers et entrera en vigueur prochainement. In the same way, Mexico reserves surrogacy for its citizens.

Greece is one of the countries that has recently amended its legislation on surrogacy. It currently allows access to these citizens but also to foreigners. However, the current version limits its use to heterosexual couples and single women.

Other countries allow surrogacy only if the surrogate receive no remuneration: therefore, only altruistic surrogacy is legal. This is the case in Australia, Canada, the United Kingdom, the Netherlands, Denmark, Israel and some United States states (New Jersey, New Mexico, Nebraska, Virginia, Oregon, Washington).

Finally, many countries absolutely lack legal measures, and show more or less tolerance for its practice, such as Belgium, Cyprus, Hungary.

For detailed information on the countries that allow surrogacy and their legal framework, you can access this link: Surrogacy Laws by Country – Where Is It Legal?

FAQs from users

By Sara Salgado (embryologist).

Surrogacy is legal mainly in Russia, Ukraine, Canada, Greece, Georgia and some states in the United States. It is also legal in countries such as Mexico and India, but new legislation has blocked access for foreigners.

Prohibitive legislation is the reason for the success of fertility tourism, in order to benefit from a surrogacy abroad.

Which destinations allow a gay couple or a single man to use a surrogate?

By Sara Salgado (embryologist).

Among the countries that legally accede to men's desire for paternity, whether alone or in a relationship, the main options are the United States and Canada. Any other country would be subject to a legal vacuum or illegality.

To learn more about this, we recommend the article: How Does Surrogacy Work for Gay Couple?

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References

Authors and contributors

 Sara Salgado
Sara Salgado
Embryologist
Degree in Biochemistry and Molecular Biology from the University of the Basque Country (UPV/EHU). Master's Degree in Human Assisted Reproduction from the Complutense University of Madrid (UCM). Certificate of University Expert in Genetic Diagnosis Techniques from the University of Valencia (UV). More information about Sara Salgado
Adapted into english by:
 Marie Tusseau
Marie Tusseau
Babygest Staff
Editorial Director of Babygest magazine in French and English. More information about Marie Tusseau

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