Surrogacy – rollercoaster of law
Surrogacy can be very complicated when it comes to laws and regulations, especially if you are planning to go abroad and find a surrogate there. It is very much recommended that you seek legal advice before making any decisions. Laws about surrogacy can be very different in each country and this could lead to some serious legal issues. In some countries where assisted reproduction is permitted the surrogate mother is by law the birth and legal mother of the baby, trying to take such a baby with you could be very risky. In the past there were cases in which a couple went abroad for surrogacy and they could not come back home with the baby because of some unregulated surrogacy laws. This is why we encourage you to consult with a lawyer when deciding for surrogacy.
Surrogacy regulated and unregulated
The world is very much divided on the matter of surrogacy. There are countries where Surrogacy is not only permitted but also strictly regulated by law so you know exactly what you can and cannot do. On the other hand you have countries where there are no policies on Surrogacy and it isn’t either prohibited or permitted but still it is practiced, however it could be a bit risky because the lack of legislation could become an issue. There are also countries which prohibit any kinds of surrogacy by law and it is a crime to go through with this process. Very often in the countries where it is regulated surrogacy is permitted only without payment – altruistic surrogacy, or only payment for time and effort is acceptable. In some countries commercial surrogacy is permitted. Below you will find a list of countries with surrogacy regulations and without regulations with a short descriptions of the surrogacy regulations. Also you will find a list of countries where assisted reproduction is legal but surrogacy is illegal.
Countries with regulated surrogacy law
Argentina – Argentina is one of the most liberal countries not only in the South America but in the world in general. When a couple decides to do surrogacy they will have to adjust to the existing ethical guidelines. Preimplantation genetic diagnosis and egg donation is also covered by those guidelines. Armenia – Law regulations in Armenia state that Surrogate mothers may use their own eggs or donor eggs. Australia – Only altruistic surrogacy is permitted in each state and territory and is subjected to many stringent criteria. Reimbursement is allowed only for ‘reasonable expenses’. Belarus – Gestational surrogacy is permitted. A contract should be written and it should include reimbursement for medical expenses, lodging of surrogate mother during gestation, meals and childbirth and the postnatal period. (Of course altruistic surrogacy between relatives is also permitted) Brazil – Surrogacy is permitted only altruistically and according the guidelines and with limited circumstances. One of the requirements is that the surrogate is related to the authorized husband or wife. There may be exemptions allowed by regional medical councils. Denmark – Altruistic surrogacy is permitted, which of course means no payments and advertising are allowed. Also no contracts are recognized. Greece – Altruistic surrogacy is permitted provided that:
- There is no genetic relation between the surrogate and the child
- The commissioning mother has to prove that she is unable to carry the child to term. Also she cannot be over 50 years old
- The surrogate must be mentally and physically healthy and she has to prove this in court
- If the surrogate has a partner she must have his consent to her acting as a surrogate
- both the couple (or single woman or couple in partnership with signed notary deed) and surrogate have to reside in Greece
Hungary – Altruistic surrogacy only. First it was only permitted if a relative gave birth to the child without any payment but later it was decided to be unconstitutional. Israel – Surrogacy is permitted also commercially. It is regulated by the Carriage of Fetuses (Approval of Agreement and Status of the New Born) Law, 5756-1996 Kazakhstan – Commercial surrogacy is permitted, and regulated by Chapter 9 of the The Code of the Republic of Kazakhstan on Marriage (Matrimony) and Family. The must be a contract between the commissioning parents and the surrogate. The contract:
- must be in writing
- The commissioning persons must be suggested
The contract must contain:
- details about the spouses and the surrogate mother;
- details about the payment;
- obligations and responsibility of parties in case of not fulfilling the contract;
- other conditions, acts of providence.
Furthermore the surrogate mother’s age must be between 20 to 35 years. She has to be physically and mentally healthy and she has to have her own healthy child. If the surrogate is married she must of course get a notarized agreement from her husband. It is also required that the healthcare organization keeps comprehensive data on biological material used by all parties. A copy of that data should be attached to the contract. Mexico – Altruistic surrogacy has been permitted but only in limited circumstances. Netherlands – Under strict circumstances altruistic surrogacy is permitted. New Zealand – Altruistic surrogacy is allowed
- Surrogacy arrangements are legal but cannot be enforceable.
- Reimbursement is allowed for necessary expenses.
- Regardless of who donated the eggs the legal mother is the woman that gave birth to the child.
- It may be presumed that the husband or partner of the woman is also the parent
- Adoption must be conducted so the surrogate is no longer the mother and the parents using the surrogacy become the legal parents.
Russia – Surrogacy is allowed even commercially. In Russia surrogacy works under a contract between the surrogate mother and the commissioning parents or a single woman which is not able to carry and deliver a child herself because of medical reasons. The surrogate mother must be 20 to 35 years old and she has to have at least one healthy child. She has to be of good physical and mental health. If the surrogate mother has a husband she has to have a written consent of her spouse. She cannot be the donor. Surrogacy is allowed under this circumstances:
- If the woman has no uterus
- If the uterus or cervix is deformed due to some diseases or congenital malformation;
- Endometriosis, endometrium pathologies such as synechia, obliteration of uterine cavity or endometrium atrophy;
- If a woman had repeatedly failed three or more IVF attempts with good quality embryos.
- she repeatedly lost pregnancy or had 3 or more miscarriages in her medical history;
South Africa – Altruistic surrogacy is permitted with reimbursement for expenses which include expenses related to the pregnancy and birth, loss of income and health insurance For the arrangement to be valid:
- the contract must be in writing and has to be signed by all the participating parties;
- At least one of the persons entering the agreement must be a resident of the South Africa. It is not only available for partners but also for a single parent.
- When the surrogate mother and her husband or partner are entering into the agreement they also have to be residents of the Republic of South Africa;
- The contract must be approved by the High Court of the South Africa in the appropriate jurisdiction.
- There must be a genetic relation between at least one of the commissioning parents and the child.
Thailand – Only altruistic surrogacy is allowed and under the following circumstances:
- The intended parents must be a married couple which are citizens of Thailand
- Foreigners are not permitted surrogacy unless they are married to a Thai national for three or more years
- Only gestational surrogacy is permitted, surrogate eggs cannot be used
- The surrogate mother has to have at least one of her own children
- The surrogate mother must be a citizen of Thailand
- The surrogate mother must be over 25 years old
Ukraine – Surrogacy is permitted including commercial surrogacy but it is restricted only to heterosexual married couples. Single persons aren’t mentioned so they are entitled to surrogacy. United Kingdom – Surrogacy is allowed but it is illegal to pay the surrogate mother, she should be reimbursed only for reasonable expenses related to the whole process of surrogacy. After the birth the surrogate mother relinquishes all of her rights over the child. We should add that it is illegal to advertise for surrogates or intended parents. Uruguay – Surrogacy is allowed only in the case when a person who is a relative agrees to be the carrier of the embryo of a woman which cannot carry the embryo herself because of genetic disorders or diseases. An arrangement between the surrogate mother and the commissioning parents must be approved by The Honorary Commission of Assisted Reproduction. All other surrogacy arrangements are invalid.
Countries with unregulated surrogacy law or prohibited
Here is a list of countries where assisted reproduction is practiced but some are all of the procedures like in this case surrogacy are not regulated by law. The lack of policy and legislations concerning surrogacy means that this procedure is neither prohibited or is it permitted. In such countries you have to be especially cautious when you decide on surrogacy and it is essential to consult a lawyer. Don’t worry there are rather no legal problems you could be facing for breaking the law but some issues could come up which could interrupt the process. Bulgaria – commercial prohibited – It’s not clear but surrogacy seems to be prohibited in Bulgaria but at the same time the government recognizes that still it is practiced so they are working on legalising it. Surrogacy in Bulgaria is called “Substitute mother” India – Laws in India concerning surrogacy are a bit unclear but commercial surrogacy was legalized in 2002 and later it was regulated loosely by guidelines from Indian Council of Medical Research in 2005. However the legislation never passed. Iran – Surrogacy (also commercial) is permitted but there is no specific law regulating it. There was a bill proposed but it is still under consideration. Because of the lack of legal regulations you would be advised to seek information from fatwas and other legal Islamic resources. As well as on other matters concerning assisted reproduction like embryo donation laws and other connected to the process of surrogacy. There are clinics in India which offer treatments and have their own internal regulations and policies. Such policies state for example that there must be consent between the couple (which has to be infertile) and the surrogate women. If that woman is married the husband also has to give his consent. The surrogate mother can be paid for her services. The commissioning mother is the child’s mother. The birth certificate states the names of the woman and her husband. Ireland – Surrogacy in Ireland is not illegal but there are currently no laws regulating the agreements on surrogacy. Every detail you need to know about surrogacy in Ireland can be found here. Jamaica Japan – Surrogacy in Japan is not regulated by any laws or policies. However the Society of Obstetrics and Gynecology has been prohibiting surrogacy in their guidelines they do not have the legal power to enforce those guidelines on the clinics. Kenya Latvia – It appears that surrogacy in Latvia is not permitted but also not prohibited. However according to IFFS Surveillance 2014 it is not being practiced in this country. Lithuania – However surrogacy is not prohibited the Civil Code of Lithuania prohibits commercial arrangements which have relations to the human body. The individual person is recognized by the government as a legal person not an object upon which you can make arrangements. Macedonia – unrecognized Nigeria – Surrogacy has not been yet regulated but steps are being made to address this matter and regulate it legally. Pakistan – A surrogacy contract in Pakistan is not recognized to be legal but it is not enforceable. Panama – Surrogacy is being practiced and it is not prohibited but laws regulating those practices and agreements do not exist at the time being. Romania South Korea – Surrogacy is permitted altruistically as well as commercially. Laws on that matter are unregulated. However the Korean Medical association discourages the use of surrogacy for commercial reasons. Altruistic surrogacy is also unregulated but there have occurred such arrangements in the past. Senegal – Surrogacy is not regulated and no practiced. USA – Surrogacy in this country is rather widely practices even though there are no specific regulations on this matter. Clinics work under their own guidelines and under the general medical law.