Surrogacy laws by country
The legal aspects of surrogacy in any particular jurisdiction tend to hinge on a few central questions:
- Are surrogacy agreements enforceable, void, or prohibited? Does it make a difference whether the surrogate mother is paid (commercial) or simply reimbursed for expenses (altruistic)?
- What, if any, difference does it make whether the surrogacy is traditional or gestational?
- Is there an alternative to post-birth adoption for the recognition of the intended parents as the legal parents, either before or after the birth?
Laws differ widely from one jurisdiction to another.
In all jurisdictions of Australia, altruistic surrogacy has been the only recently recognized surrogacy that has become legal. However, in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offense, although the Northern Territory has no legislation governing surrogacy at all and there are no plans to introduce laws on surrogacy into the NT Legislative Assembly in near the future.
In 2006, Australian senator Stephen Conroy and his wife Paula Benson announced that they had arranged for a child to be born through egg donation and gestational surrogacy. Unusually, Conroy was put on the birth certificate as the father of the child. Previously, couples who used to make surrogacy arrangements in Australia had to adopt the child after it was registered as born to the natural mother; rather than being recognized as birth parents, however now that surrogacy is more regular practice for childless parents; most states have switched to such arrangements to give the intended parents proper rights. After the announcement, Victoria changed their legislation since 1 January 2010, under the Assisted Reproductive Treatment Act 2008 to make altruistic surrogacy within the state legal, however commercial surrogacy is illegal.
Since 1 June 2010 in Queensland, altruistic surrogacy is legal under the Surrogacy Act 2010 No 2. Yet, the commercial surrogacy is still illegal under the legislation.
Similarly, in both New South Wales and the Australian Capital Territory, altruistic surrogacy is legal under the Surrogacy Act 2010 No 102 and the Parentage Act 2004, respectively.
In Western Australia (under the Surrogacy Act 2008) and South Australia (under the Family Relationships Act 1975) altruistic surrogacy is only legal for couples consisting of the opposite sex (single people and same sex couples are banned from altruistic surrogacy).
In 2012, Tasmania passed two pieces of legislation to legally allow altruistic surrogacy. The two laws are called the Surrogacy Act No 34 and the Surrogacy (Consequential Amendments) Act No 31 Proposed altruistic surrogacy legislation was drafted and passed by both houses of the Tasmanian parliament - only after a review of the Surrogacy Contracts Act 1993 No 4 and after an ongoing community consultation process. Under the altruistic surrogacy legislation, the surrogate must be at least 25 years old and it cannot be her first pregnancy. The new altruistic surrogacy laws are due to come into effect on January 1, 2013.
The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy: surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is illegal. The province of Quebec, however, prohibits all surrogacy.
The Quebec Civil Code renders all surrogacy contracts, whether commercial or altruistic, unenforceable. That law has been interpreted to mean the genetic mother of a child born to a gestational surrogate will not be recognized as the legal mother, not via adoption nor by any other means, even if that leaves a child with no legal mother at all.
In France, since 1994, any surrogacy arrangement that is commercial or altruistic, is illegal or unlawful and is not sanctioned by the law (art 16-7 of the Code Civil). The French Courts the Cessation already took this point of view in 1991. It held that if any couple makes an agreement or arranges with another person that she is to bear the husband's child and surrender it on birth to the couple, and that she is choosing that she will not keep the child, the couple making such an agreement or arrangement, is not allowed to adopt the child. In its judgment the court held that such an agreement is illegal on the basis of articles 6 & 1128 of the Code Civil, together with article 353 of the same code.
Commercial surrogacy is criminal under the Human Reproductive Technology Ordinance 2000. The law is phrased in a manner that no one can pay a surrogate, no surrogate can receive money, and no one can arrange a commercial surrogacy (the same applies to the supply of gametes), no matter within or outside Hong Kong. Normally only the gametes of the intended parents can be used.
In October 2010, Peter Lee, the eldest son and one of the presumed heirs of billionnaire Lee Shau Kee obtained three sons through a surrogate mother, reportedly from California. Since the junior Lee is single, the news attracted criticism on both moral and legal grounds. A vicar general of the territory's Roman Catholic diocese was critical. In December the case was reportedly referred to police after questions were asked in Legco.
Commercial surrogacy is illegal in Hungary.
All surrogacy arrangements (both commercial and altruistic) are illegal.
Commercial surrogacy is legal in India. India is emerging as a leader in international surrogacy and a destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with infertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients between $10,000 and $28,000 for the complete package, including fertilization, the surrogate's fee, and delivery of the baby at a hospital. Including the costs of flight tickets, medical procedures and hotels, it comes to roughly a third of the price compared with going through the procedure in the UK. The Honorable Supreme Court of India has given the verdict that the citizenship of the child born through this process will have the citizenship of its surrogate mother.
In March 1996, the Israeli government legalized gestational surrogacy under the "Embryo Carrying Agreements Law." This law made Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. A state-appointed committee permits surrogacy arrangements to be filed only by Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. The numerous restrictions on surrogacy under Israeli law have prompted some intended parents to turn to surrogates outside of the country.
All surrogacy arrangements (both commercial and altruistic) are illegal.
Netherlands and Belgium
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Altrustic surrogacy is legal in Belgium and the Netherlands. Only commercial surrogacy is illegal in Belgium and the Netherlands. Although altrustic surrogacy is legal, there is only one hospital taking in couples and there are extremely strict rules to get in. This makes a lot of couples seek their treatment outside the Netherlands or Belgium.
Surrogacy is illegal in Pakistan.
Gestational surrogacy, even commercial [is legal in Russia], being [available for practically all adults willing to be parents]. There has to be a certain medical indication for surrogacy: absence of uterus; uterine cavity or cervix deformity; uterine cavity synechia; somatic diseases contraindicating child bearing; repeatedly failed IVF attempts, when high-quality embryos were repeatedly obtained and their transfer wasn’t followed by pregnancy.
The first surrogacy program in Russia was successfully implemented in 1995 at the IVF centre of the Obstetrics and Gynecology Institute in St. Petersburg. The public opinion is surrogacy-friendly, recent cases of a famous singer and a well-known business-woman, who openly used services of gestational surrogates received very positive news coverage.
A few Russian women such as Ekaterina Zakharova,Natalija Klimova,Lamara Kelesheva became grandmothers through postmortem gestational surrogacy programs, their surrogate grandsons being conceived posthumously after the death of their sons.
Registration of children born through surrogacy is regulated by the Family Code of Russia (art. 51-52) and the Law on Acts on Civil Status (art. 16). A surrogate’s consent is needed for that. Apart from that consent, no adoption nor court decision is required. The surrogate’s name is never listed on the birth certificate. There is no requirement for the child to be genetically related to at least one of the commissioning parents.
Children born to heterosexual couples who are not officially married or single intended parents through gestational surrogacy are registered in accordance to analogy of jus (art. 5 of the Family Code). A court decision might be needed for that. On August 5, 2009 a St. Petersburg court definitely resolved a dispute whether single women could apply for surrogacy and obliged the State Registration Authority to register a 35 year old single intended mother Nataliya Gorskaya as the mother of her “surrogate” son.
On 4 August 2010, a Moscow court ruled that a single man who applied for gestational surrogacy (using donor eggs) could be registered as the only parent of his son, becoming the first man in Russia to defend his right to become a father through a court procedure. The surrogate mother’s name was not listed on the birth certificate, the father was listed as the only parent. After that a few more identical decisions concerning single men who became fathers through surrogacy were adopted by different courts in Russia listing men as the only parents of their “surrogate” children and confirming that prospective single parents, regardless of their sex or sexual orientation, can exercise their right to parenthood through surrogacy in Russia.
Liberal legislation makes Russia attractive for “reproductive tourists” looking for techniques not available in their countries. Intended parents come there for oocyte donation, because of advanced age or marital status (single women and single men) and when surrogacy is considered. Foreigners have the same rights as for assisted reproduction as Russian citizens. Within 3 days after the birth the commissioning parents obtain a Russian birth certificate with both their names on it. Genetic relation to the child (in case of donation) just doesn’t matter.
Religious authorities in Saudi Arabia do not allow the use of surrogate mothers, instead suggested medical procedures to restore female fertility and ability to deliver. To this end, Saudi authorities sanctioned the world's first uterus transplant in an infertile woman.
All surrogacy arrangements (both commercial and altruistic) are illegal.
The South Africa Children's Act of 2005 (which came fully into force in 2010) enabled the "commissioning parents" and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty - although if the surrogate mother is the genetic mother she has until 60 days after the birth of the child to change her mind. The law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of the law, no non-validated agreements will be enforced, and agreements must be altruistic rather than commercial. If there is only one commissioning parent, s/he must be genetically related to the child. If there are two, they must both be genetically related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple). The commissioning parent or parents must be physically unable to birth a child independently. The surrogate mother must have had at least one pregnancy and viable delivery and have at least one living child. The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any medical reimbursements she had received.
Surrogacy is not clearly regulated in Swedish law. The legal procedure most equivalent to it is making an adoption of the child from the surrogate mother. However, the surrogate mother thereby has the right to keep the child if she changes her mind until the adoption. Yet, the biological father may claim right to the child.
It is illegal for Swedish fertility clinics to make surrogate arrangements.
Surrogacy is regulated in the "Bundesgesetz über die medizinisch unterstützte Fortpflanzung (Fortpflanzungsmedizingesetz, FMedG) vom 18. Dezember 1998" and illegal in Switzerland. Art. 4 forbids surrogacy, Art. 31 regulates the punishment of clinicans who apply in vitro fertilisation for surrogacy or persons who arrange surrogacy. The surrogate mother is not punished by law. She will be the legal mother of the child.
Since 2002, surrogacy and surrogacy in combination with egg/sperm donation has been absolutely legal in Ukraine. According to the law a donor or a surrogate mother has no parental rights over the child born and the child born is legally the child of the prospective parents.
In Ukraine the start of introduction of methods of supporting reproductive medicine was given in eighties of the preceding century. It was Kharkov where the extracorporeal fertilization method was for the first time successfully applied in Ukraine, and in 1991 a girl named Katy was born. Kharkiv was also the first city in CIS countries to realize surrogacy. Many clinics dealing with surrogacy have been opened in Kiev and Lviv.
Ukrainian surrogacy laws are very favorable and fully support the individual's reproductive rights. Surrogacy is officially regulated by Clause 123 of the Family Code of Ukraine and Order 771 of the Health Ministry of Ukraine. You can choose between Gestational Surrogacy, Egg/sperm Donation, special Embryo adoption programs and their combinations. No specific permission from any regulatory body is required for that. A written informed consent of all parties (intended parents and surrogate) participating in the surrogacy program is mandatory.
Ukrainian legislation allows intended parents to carry on a surrogacy program and their names will be on Birth certificate of the child born as a result of the surrogacy program from the very beginning. The child is considered to be legally "belonging" to the prospective parents from the very moment of conception. The surrogate’s name is never listed on the birth certificate. The surrogate can't keep the child after the birth. Even if a donation program took place and there is no biological relation between the child and intended parents, their names will be on Birth certificate (Clause 3 of article 123 of the Family Code of Ukraine).
Embryo research is also allowed, gamete and embryo donation permitted on a commercial level. Single women can be treated by known or anonymous donor insemination. Gestational surrogacy is an option for officially married couples and single women. There is no such concept as gay/lesbian marriage in Ukraine, meanwhile such patients can be treated as single women/men.
Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognised under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable within the United Kingdom. A surrogate mother still maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made the surrogate mother remains the legal mother of the child.
Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child's legal parents. Some relatively surrogacy friendly states only offer support for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support.
For legal purposes, what matters is where the contract is completed, where the surrogate mother resides, and where the birth takes place. Therefore, individuals living in a non-friendly state can still benefit from the polices of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.
Arkansas was one of the first states to enact surrogacy friendly laws. In 1989, under then Governor Bill Clinton, it passed Act 647, which states that in a surrogacy arrangement, the biological father and his wife will be recognized as the child's legal parents from birth, even if his wife is not genetically related to the child (i.e., in a traditional surrogacy arrangement). If he is unmarried, he alone will be recognized as the legal parent. A woman may also be recognized as the legal mother of the surrogate birth mother's genetic child as long as that child was conceived with anonymous donor sperm. On the other hand, it is unclear how or whether same sex couples could benefit these laws, since the 2008 ballot measure that made it illegal for unmarried, cohabiting individuals to adopt or provide foster care to minors.
California is known to be a surrogacy friendly state. It permits commercial surrogacy, regularly enforces gestational surrogacy contracts, and makes it possible for all intended parents, regardless of marital status or sexual orientation, to establish their legal parentage prior to the birth and without adoption proceedings (pre-birth orders).
Michigan forbids absolutely all surrogacy agreements. It is a felony to enter into such an agreement, punishable by a fine of up to $50,000 and up to five years in prison. The law makes them unenforceable.
New York law holds that commercial surrogacy contracts contravene public policy and provides for civil penalties for those who participate in or facilitate a commercial surrogacy contract in New York. Altruistic surrogacy contracts are not penalized, but neither are they enforced. New York does recognize pre-birth orders from other states, and has provided a post-birth adoption alternative for altruistic surrogate parents via orders of maternal and paternal filiation.
Baby M: New Jersey 1988. The surrogate mother in a traditional surrogacy arrangement decided to keep the resulting child. The intended parents sued to have themselves recognized as the legal parents. The court found in favor of the surrogate mother. However, the original couple was given custody of the child because the courts thought they would provide a better home for the baby than the surrogate mother would, who was instead given visitation rights.
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