Guide to Understanding the Laws on Surrogacy
Different cultures, ethnicities, and religions understand and use surrogacy differently. Although as we discussed previously, there is no standard of what surrogacy is, the general understanding is that a surrogate is a woman who carries a child for another person or couple. In a gestational surrogacy, the surrogate carries a genetically unrelated child. In a traditional surrogacy , the surrogate uses her own egg to produce a child that is genetically related to her. The child produced through a traditional surrogacy would be generally be considered the child of the surrogate and the surrogate’s intended parents would have to determine their legal rights through a second parent adoption.
The legal system for surrogacy varies wildly between countries. There are countries that allow some types of surrogacy but prohibit others. Other countries allow surrogacy but remove parental rights from the intended parents. Still other countries allow surrogacy but only where one or both of the intended parents have a medical condition that prevents them from having a child. Some countries include a mandatory waiting period, such as one year.
The Best Countries for Legal Surrogacy
The majority of countries, particularly those of the European Union, are prohibitive of surrogate programs both for their own citizens and foreigners. Russia, Thailand and India shut down their surrogacy opportunities for foreigners in 2015, narrowing the field enormously. The most popular locations for surrogacy have recently come to be designated as the USA, Canada and Ukraine for their reasonability and access to English.
USA
American surrogacy has grown rapidly. It is currently at the forefront of contemporary fertility advancements after the pioneering and ground-breaking work successfully performed in California. Many Americans are choosing to have their surrogate birth in California, as the liberal laws in California ensure the legalization of agreements between the parents and the surrogate mothers. Notably, the medical services, the training and competence of the lawyers participating in surrogacy, and the high qualification of developing American embryologists, allow for a much wider range of services for the clients. America also boasts having a number of organizations that operate in the industry. The costs of surrogacy in the USA exceed €100,000 on average.
Canada
Surrogacy in Canada is at its most popular in the provinces of Ontario and British Colombia. The average cost of surrogacy in these areas around €30,000. Canadian surrogacy programs beat many others by offering their services with fewer risks of legal issues, due to the existence of clearly defined laws and regulations pertaining to the procedure. Canadian contract law offers the families beneficial terms. The process of surrogacy is well-organized, due to the efficiency of the system and coordination skills of the surrogate agencies. Mental and physical health of surrogate mothers is carefully monitored here. However, foreigners are not allowed to choose the girls available in surrogate agencies, and they may only continue with the process upon meeting surrogate mothers and received approval from them, which can take longer than most aspiring surrogate families can afford.
Ukraine
Ukraine is one of the few surrogacy-friendly lands of Europe. The average cost of surrogacy in Ukraine is about €40,000. There are many Ukrainian surrogate agencies available for foreigners. Many foreigners turn to Ukraine due to generous conditions for participation in surrogate programs, as well as the high level of safety and transparency of the process. The prices offered by surrogate agencies here are also relatively low. Legalizing the surrogacy agreement is now required in Ukraine.
Surrogacy Requirements by Country
The following is a list of countries in which surrogacy is legal and where we have provided a brief discussion of the country specific legal requirements relative to surrogacy.
IWALU will assist you in the specific eligibility requirements for surrogate mothers in surrogacy-friendly countries listed below. We will help you understand the specific surrogacy rules between the surrogate mother and the intended parents including compensation, contractual laws, medical coverage, maternity leave, prenatal and postnatal care. Those are just some of the concerns we will develop and focus on with you. For example, a few examples of what are the requirements for you to be a surrogate in each country: In the United States, each state has its own surrogacy laws and it is illegal to provider surrogacy services in Maryland, Nebraska, New York, Utah and Michigan. For a lot of couples visiting us, the best option is Ukraine.
To be a surrogate in Ukraine you have to be at least 18 years old and less than 40 years old. The surrogate must be healthy both physically and psychologically. In general, this means that a surrogate woman must have regular menstrual cycles, normal hormone levels and no venereal diseases or sexually transmitted infections. A few other requirements include: Surrogate’s husband must give consent to her undergoing a procedure of implantation of embryo prepared by the third party with a sperm from the third party; The surrogate mother shall stop breastfeeding; Surrogate mother shall undergo medical examination in the network of the medical institution that has applied for rendering the services of surrogacy; Surrogate mother must not have children who were abandoned and that were raised in state institutions; Surrogate mother must not have children with any serious genetic or inherited disease.
IWAL provides both legal and medical support with professionals that come with impeccable credentials from the leading hospitals and universities.
Countries that Restrict Surrogacy
The legislative landscape of surrogacy extends well beyond what we have in the United States. In some countries, surrogacy is not an option. In other places, it is only permitted in very limited circumstances. In the UK, surrogacy arrangements are permissible, but only on an altruistic basis. Thus, the reason for the surrogacy arrangement cannot be financial. The costs of the medical insurance, legal services and travel are to be paid by the intended parents, but the surrogate cannot receive any additional payment for her involvement in the process. The UK has also placed a limit on the allowable expenses which can be paid to a surrogate, which could impact international surrogacy as intended parents are likely to need to pay for travel, visa applications and accommodation in some cases. In Australia , surrogacy is similarly restricted to altruistic arrangements. However, Australia has also legislated to prohibit overseas commercial surrogacy. Australians that participate in international surrogacy in a country which permits commercial surrogacy arrangements, could be subject to imprisonment for up to three years if they bring their child to Australia. Australia has also set out the application of parentage orders, which sets out how foreign surrogacy laws are recognised. Thus, if you are considering international surrogacy, there are some countries that will accept the validity of surrogacy arrangements conducted in the US, while others will not. It is advisable to develop a detailed understanding of international arrangements before making the jump into surrogacy abroad.
Ethical and Cultural Considerations
As individuals and couples from Canada and the United States seek less costly paths to parenthood through international surrogacy, they are also confronted with a different array of ethical and cultural considerations. These considerations are particularly acute when the couple or individual is headed to a country or culture that holds different views on issues such as consent, sexuality and the agency of women undergoing the process of surrogacy.
The history of surrogacy is rich with commentary on the ethical dilemmas arising after the birth of a child carried by a surrogate. To what extent should a woman carry a child in an arrangement in which she relinquishes her rights after the birth? Are these arrangements voluntary or involuntary? Are women coerced, particularly in poorer nations? Can the surrogacy agent farms women to maximize his or her profit? Should children born of surrogacy have claims to inheritance in the country in which they are born and have the right to obtain citizenship? If a medical emergency arises for the child during or after birth, does the surrogate have obligations to the child? Can the child make a claim against the intended parents? These issues, and many more, have long permeated the consistent development of the surrogacy industry, including the ongoing work of law makers and advocacy groups.
Among the other considerations and issues are the financial arrangements between the parties in a surrogacy agreement. In Canada, no agency can charge fees to surrogates. While surrogate mothers may receive expenses as a result of being away from work or school, and expenses for other costs (medical, nutrition, travel and accommodation) in accordance with provincial guidelines, the arrangement must not be for material gain. Many surrogates assist in arranging their own expenses and those of the clinic or surrogacy agency. The Canadian system is one that treats surrogacy as an altruistic act and thereby limits complex questions of whether to have surrogate mothers displace their regular employment and other activities in order to earn a profit.
Conflicts are easily avoided or managed through independence and transparency. Canadian clinics and agencies that arrange international surrogacy generally conduct their own due diligence on the foreign agency or agent to whom they will refer their patients. Canadian patients are inducted at the onset of the process, and are often referred to foreign lawyers experienced in international surrogacy, who guide and advise as to the practices of those countries involved in the arrangement.
Advice for Prospective Parents
Before engaging in international surrogacy, prospective parents should seek the legal advice of an attorney who specializes in assisted reproduction technology law. Proper planning can result in a joyous event. However, mistakes, miscommunication or an assumption that parenting rights will be automatically granted to the surrogate’s spouses can lead to heartbreaking devastation including denial of parentage, death threats from the surrogate and her family or worse.
Since every state has its own surrogacy laws and rules, it is important to use a lawyer who specializes in assisted reproduction technology (ART), especially international ART. If domestic surrogacy is also planned, find an ART specialist who also handles domestic ART. While many family lawyers dabble in such things, they may not have handled an international surrogacy where sperm and/or eggs were also transported across state or country lines.
Ask the attorney if he or she has ever used a surrogate. This provides you with the opportunity to learn more about and critique the attorney’s personal experience. Some prospective parents like the comfort of using an attorney who has personally been through the process. Others prefer someone who has not been through the process , finding that person’s perspective less overwhelming. The type of attorney you want of course is one who has handled many international and domestic surrogacies. Regardless of the person you choose, the most important thing to evaluate is whether this person is someone you trust and with whom you feel comfortable.
Ask about the fees. Does the attorney charge by the hour or a flat fee? If a flat fee, what is covered? Is a special fee charged for such things as phone calls with you or the doctor? Are there any additional charges for paperwork or e-mail correspondence?
Although contracts are routinely used in surrogacy, some lawyers handling international surrogacy may ask you to sign certain documents requesting assurances or waivers before the process begins. These documents should be reviewed and clearly understood before signing.
We recommend hiring an attorney from the same country or state as the surrogate. Some surrogate-friendly states require certain contracts to be written and interpreted under that state’s laws. Although they may cooperate, surrogacy laws of foreign countries are not usually accepted by American courts. Instead, courts generally abide by the federal laws of the United States and those of individual states.