Country-Wise Surrogacy Laws: Advantages and Disadvantages – Part 1

In this article we’ll discuss country-specific surrogacy laws, as well as their advantages and disadvantages for international intended parents. Surrogacy is where fertilized embryos from the parents are implanted in the womb of another woman to be carried to term (known as the “surrogate mother”), usually due to the intended mother being unable to carry the child safely to term.

There are two basic forms of surrogacy;

1. Traditional surrogacy
2. Gestational surrogacy

In traditional surrogacy, the surrogate mother uses her own eggs and is hence considered the genetic mother. In the case of gestational surrogacy, the intended mother or a separate donor provides the eggs instead. The egg is externally fertilized through In Vitro Fertilization (IVF) and then introduced to the surrogate mother’s womb.

Is surrogacy legal?
The legitimacy of surrogacy varies from one country to the next. Surrogacy is completely prohibited in France, Germany, Italy, Spain, Portugal, and Bulgaria.

Countries including the UK, Denmark, Belgium, and Ireland have allowed surrogacy only in cases where the surrogate mother is not monetarily compensated and is only paid for her reasonable expenses to maintain the pregnancy. Commercial surrogacy is entirely prohibited in these countries.

Commercial surrogacy, however, is legal in some states of the United States of America, Russia, and Ukraine. Couples who are not able to bear children naturally usually opt for international surrogacy, if the procedure is not allowed by their own country.

Surrogacy laws vary widely in Australia as well. Some Australian states have legally criminalized international surrogacy for natives, while others permit it.

Popular Countries for Surrogacy
The countries that are the most popular with international intended parents for their excellent surrogacy arrangements are Thailand, the US< Ukraine, and Russia. Nepal, Poland, Mexico, and Georgia are also popular countries due to their advanced surrogacy facilities.

Surrogacy costs vary significantly from country to country, but the cost more depends on the number of IVF cycles that the couple requires before they conceive. It also depends on whether donated eggs or semen samples are needed for in-vitro fertilization. Additionally, if the surrogacy is covered under any health insurance then this can reduce costs.

Why do women serve as surrogate mothers?
Being unable to bear your own child can cause an unimaginable amount of suffering and distress. Some women choose to help these couples have their own babies to alleviate this suffering. Of course, they charge for the service they render, but there’s no compensation high enough for the compassion they show to the childless couple. We can only be grateful towards the surrogate, who helps change the lives of many childless couples.

Couples who choose other destinations for surrogacy services are either forced to choose the location due to a ban on surrogacy in their own country, or due to the cost benefits of the surrogacy procedure in the chosen destination. In many countries surrogacy is not particularly popular despite being legal, which can be caused by the absence of a proper framework to support it. For instance, Thailand is one nation that does not have any clear regulations regarding surrogacy, but legislation has been prepared by the government that introduces strict laws. As per the draft prepared by the legislative authorities, the surrogates must be a blood relative of the couple intending to have babies through surrogacy. Similarly, in India, surrogacy is massively restricted and is entirely barred for singles and same-sex couples.

Complications
There are still no internationally recognized surrogacy laws. Due to such indefinite laws, many parents and newborns are left vulnerable and even stateless. In some countries, it may even take several months to bring the newborn surrogate baby back to its parent’s home country, since the intended parents are not recognized as the legal parents. There’s a long legal process for transferring custody from the surrogate mother to the actual parents before they’re recognized legally.

In Thailand, the surrogate mother is considered the legal mother. She is legally responsible for changing the legal status and country of the baby. The intended parents can take the child back to their own country only if she provides “no objection” documents and hands the child over to them. In India, however, the intended parents are considered the legal parents of the child born from surrogacy. On the other hand, the surrogate mother is considered the legal mother of the newborn under UK laws. As you can see, the legal parenthood of the child can vary wildly depending on which country you’re in.

Risks for surrogate mothers
Of course, there are risks for surrogate mothers. These risks are carefully handled and mitigated by reputable IVF clinics and surrogacy centers. They take responsibility for the adequate compensation and proper healthcare for the surrogate mothers. The surrogacy agencies follow strict regulations for the security and future of the surrogate mothers, as there have been cases where the child is born with some kind of disability and is then abandoned by the intended parents. As a result, surrogacy agencies are extremely strict about the responsibility of the intended parents, and are committed to ensuring the best possible future for the child, surrogate mother, and intended parents. Additionally, it’s tough to control illegal exploitation as this is a lucrative industry and evidence is hard to gather. As a result there are many cases of women forced to serve as surrogate mothers for racketeers outside of reputable surrogacy agencies.

Surrogacy Laws by Country

• India has banned foreign national couples from receiving surrogacy services as of 2015. The United Nations Committee on the Rights of the Child had banned commercial surrogacy a year before that in the country due to concerns over children being sold.
• For-profit surrogacy was permitted in Thailand until 2015, but the country banned it for foreign intended parents after a series of scandals relating to high-profile surrogacy cases. This included one where an Australian couple was accused of disowning a surrogacy-born baby that had Down’s syndrome.
• There is no legislation present at any federal level in the US concerning surrogacy, and most of the states allow arrangements for commercial surrogacy.
• Georgia and Ukraine have recently emerged as popular surrogacy hubs due to the absence of laws or rules regarding surrogacy so far. Their governments have not yet barred any form of surrogacy, and so many high-quality agencies practice in the country.
• Surrogacy is allowed in Russia, and the country is considered as one of the most non-restrictive countries for surrogacy practice.
• Cambodia had no laws involving surrogacy until 2016 when the government cracked down on all surrogacy agencies.
• Altruistic surrogacy is allowed in Belgium, but commercial surrogacy is outlawed. While altruistic international surrogacy is technically legal, there is only one surrogacy center in the entire country that accepts national and international couples. Additionally, they are exceptionally strict about the process of surrogacy and what treatment is received. For this reason many Belgian couples seek surrogacy treatment abroad.
• In France, Article 17/6 of the Civil Code makes a surrogacy agreement of any kind illegal. In the well-known Mennesson case the French high court outlawed any surrogacy agreement, no matter the circumstances. A committee of intended parents has filed an appeal to the European Court of Human Rights against this civil code. The French Embassy’s website in Kyiv also notifies its citizens about the civil code against this practice, and warns that any who fail to comply with the ban may fall into severe judicial and administrative complications by violating the surrogacy laws, which may include criminal proceedings.
• In Germany, the courts have enacted strong regulations against surrogacy and hold them as a breach of Article 1 of the German Constitution, which states that human dignity is inviolable. It is not permitted in Germany to make a living being the subject of any two or three party surrogacy contract, and does not permit the use of a third party solely for the purpose of reproduction. The German Civil Code strictly defines motherhood and makes surrogacy arrangements impermissible within the country.
• Commercial surrogacy or profit surrogacy is banned in Denmark, New Zealand, Canada, Australia and the United Kingdom. The Northern Territory of Australia, however, has no laws on this. This destination allows some forms of altruistic surrogacy for foreign nationals.
• France, Germany, Bulgaria, Italy, Portugal and Spain prohibit every form of surrogacy for both natives and foreign couples.

Continued in Part 2