What Does Legal Surrogacy Actually Mean?
To begin, it is worth understanding the base concept of surrogacy. Surrogacy is an arrangement intended to cause a child to gestate in a woman for couples who cannot conceive otherwise. As such, there are two types: traditional arrangements, where the surrogate is the biological mother; and gestational arrangements, where the surrogate has no biological connection to the child. While the basic concept of surrogacy is well known to many, the details of the legal landscape are somewhat trickier.
As surrogacy careens into the mainstream of American medicine , so too have discussions of the legal landscape surrounding surrogacy arrangements. As some have observed, the relevant laws in the United States are a patchwork of jurisprudence, ranging from full illegality to broader approval. Many countries throughout the world, meanwhile, remain friendly to legal surrogacy, and some impose very few, if any, restrictions on the practice. With such a wide array of laws around the world, it is crucial to understand how surrogacy is viewed in the jurisdiction in which you live.
Leading Countries for Legal Surrogacy
Countries that have very liberal surrogacy laws are always a priority for those who are not able to conceive themselves. Those who have a sufficient budget usually end up going abroad for surrogacy in a country that has some of the closest legal protections to their own.
USA – Most intended parents prefer to be the child’s legal parent from the day of his or her birth. In the US, at least 40 states allow for additional legal protection of the intended parent. The process is quite expensive in the US, and the budget for surrogacy there should be $80,000 at minimum, while in some states (such as California) the budget is much higher.
Ukraine – Ukraine is considered one of the best countries for surrogacy. Surrogacy is legal for heterosexual married couples only. The advantage of surrogacy in Ukraine is its relatively affordable price. The budget for using a surrogate in Ukraine is the lowest among the leading countries for international surrogacy. Besides, the process is quite fast and efficient.
Greece – Starting from 2014, the Greek government allowed people of any sexual orientation to use a surrogate. The law does not mention that the surrogate should be from Greece. This is a new destination for surrogacy.
Russia – In the last several years, international surrogacy in Russia has become increasingly popular. The prices are acceptable, and many Russian specialists who decide to move abroad are actually well known in the country. The law allows citizens of any sexual orientation to use surrogacy.
Kenya – It has become a popular country for surrogacy. The service is legal for married heterosexual couples.
Variations In Legal Surrogacy
With the growth of commercialized surrogacy worldwide, a variety of legal and ethical questions have arisen. Countries vary widely in how they go about regulating surrogacy, and accordingly, whether intended parents and surrogates can be considered "legal" or even "legitimate." Some surrogacy-friendly countries place few restrictions on how parties may navigate the process, while others have extensive legal requirements and even prohibitions. Generally speaking, such requirements might involve restrictions on how a surrogate may be compensated or to whom a surrogate is required to deliver the child. Such requirements also might concern how the intended parents may establish legal rights concerning the child once it is born.
India is widely considered the surrogacy capital of the world. However, in 2015, the Indian government took the somewhat controversial stance of effectively banning surrogacy for foreign intended parents. The Indian surrogacy providers scrambled to work around this ban by utilizing a long-standing provision in the law that permits foreigners who are citizens of certain countries to obtain a court order in international surrogacy matters in India. In this instance, the right to such a court order effectively made India available only to certain foreigners while excluding others. Following the increased interest from foreigners in pursuing surrogacy in India, the government backtracked in late 2015 and suspended the provision allowing foreigners to pursue surrogacy. Surrogates in India recently went on strike to protest the move, but for now, India remains closed to foreign intended parents interested in surrogacy.
In Georgia (a former Soviet republic, not the U.S. state), any single person or married couple may pursue surrogacy. The expected mother must be proven healthy and capable of gestating the child, and the surrogate must be under 35, married, and have given birth to at least one child. Although any single person or married couple may pursue surrogacy in Georgia, residency requirements favor those from Western countries as such requirements require intended parents to travel to Georgia to start the process.
The Czech Republic currently allows surrogacy only for married couples. Parents must demonstrate infertility as surrogacy is disallowed for those who have no health-related problems with conception. In the Czech Republic, surrogacy does not effectively transfer rights from the surrogate to the parent. To establish legal parentage, the intended parents must obtain paternity testing in addition to a court order affirming parentage. Winning the desired order can take a substantial amount of time.
Other jurisdictions, such as the United Kingdom, Australia, Austria, and Canada, prohibit commercialized surrogacy but allow altruistic surrogacy. The list is long. Each jurisdiction has different legal requirements to explore.
Considerations and Legal Issues
Understanding Potential Legal Issues Surrounding Surrogacy
While many laws pertaining to surrogacy are consistent throughout the world, domestic and international considerations may create area-specific complexities. It’s typically in the best interest of all parties to have a solid understanding of the legal implications before agreeing to move forward.
Citizenship and Parental Rights An important factor intended parents should consider is their child’s citizenship. International surrogacy can be complex when it comes to ensuring the child’s rights. These challenges arise from the differing laws between the United States and foreign countries. The level of parental and contractual rights for intended parents and surrogates also needed to be addressed ahead of time.
Contracts Because the laws governing surrogacy can vary from country to country, and even state to state , it is wise to consult with an attorney familiar with the surrogacy laws of your intended destination. This stands as true whether your surrogacy is domestic or international, but the stakes can be even higher when dealing with an international agency. Consulting an attorney will help ensure that all parties involved are well-informed about the process. Additionally, when proper legal representation is engaged, it may reduce the likelihood of the potential for an unanticipated loss of the surrogate’s right to compensation or to transfer parental rights.
Representation In addition to an attorney to represent the intended parents, it is preferable that the surrogate have her own attorney that can review documents to best look out for her best interests throughout the process. The surrogate must be aware of potential issues that could arise based on her citizenship and residency. It is important for all parties to be assured that everything that can be done is being done to secure the desired outcome for all involved.
Cultural and Ethical Implications of Legal Surrogacy
The ethical and cultural implications of surrogacy are a topic of vigorous debate around the world, and they often influence how nations choose to legally regulate the practice. We may start with a presumption that surrogacy disrupts the family, but leave our ethnocentrism behind as we consider the cultures that have engaged in surrogacy for centuries: the Artai of East and North Africa, the Tèrrâa of Australia, and the Kota of India among others. In fact, in some subcultures it is "the single most important transaction involving women in the society" and there is nothing groundbreaking about the basic idea of surrogate motherhood.
Though strikingly similar to ancient Indian customs surrounding kafala, or the adoption of abandoned infants, Kashmir recently legislated to prohibit surrogacy for foreigners because of concerns that surrogates are being treated like commodities and exploited. Surrogacy of foreign women in India had previously been solution for poverty in the region. It provided an "economic lifeline" but it drew the disdain of others who viewed it as "baby farming." Class and caste stereotyping were among the many reasons why the ban on surrogacy for foreigners was embraced by some and condemned by others. The heightened negative perception of class and caste issues further stigmatizes the practice of surrogate motherhood for elites and only exacerbates discrimination and exclusion.
While the law seeks to protect surrogates, it does not prevent exploitation. It merely relegated surrogacies to the private sphere. Taking place in homes, the lack of institutional regulation means "child trafficking, sexual violence, rape, medical negligence, psychological trauma, and poverty" continue, especially for poor women and children.
In some cultures surrogacy is paramount to ensuring the continuity of the ancestral line. This is prominent in Middle Eastern countries. Honor and shame are at stake and a surrogate mother’s ability to bear a child is often more important than her desire to keep the child. She may be blamed for not being able to provide a male heir. Parents turn to surrogacy so that their son can marry. And for those women who cannot become pregnant they are given the choice to become a "respectable woman" through surrogacy.
While there are clearly many cultural factors at play, for surrogates and intended parents, motivations are not always black and white. Geeta and Shiv Kumar prayed for years to have a child. After having given up all their savings to try for a child in India they were offered an "affordable surrogate." There was nothing unethical or commoditized about this arrangement for them. He wanted an heir, and she wanted to make him proud.
Geeta was again pregnant and attended antenatal appointments with Surrogate A at the commercial clinic. When Surrogate A began to lose hope, Geeta was advised to switch to Surrogate B. Geeta felt guilty but complied when the commercial clinic made the decision for her. She trusted the commercial clinic. She was cited as a witness when the contract was drawn up. She signed off on the decision to switch surrogates. She signed a contract passing her rights over the baby to Shiv Kumar.
And as compared to her treatment in the two hospitals where she had previously been surrogating, Geeta seemed well treated by the commercial clinic. She only returned to her mother’s home for a couple weeks after she delivered the baby. She wanted to return to the clinic, which offered her a steady stream of income. After all, Geeta received 3000 dollars for her efforts, enough to pay for two years of rent.
At the same time, the economic backdrop of surrogacy cannot be ignored. "Economic liberalization in India has democratized access to fertility treatments" (Sama). Many are now able to afford artificial reproduction technology.
Though not without flaws, the commercial clinic in India is regulated. It is licensed to practice ART services under the Pre-Conception and Prenatal Diagnostic Techniques Act. Doctors must be registered with the appropriate credentialing body and are required to have two years of post-qualification experience in assisted reproduction technology.
In terms of regulating surrogacy, Canada has stressed respect for the autonomy and dignity of surrogate mothers while other countries have been more concerned about procreation and the continuation of the family line. India and Israel have focused more on the consequences of the commodification of life. While some countries have blamed the surrogates for exploitation, underlining their supposedly immunized position in the black market surrogacy trade, others have envisioned them as the primary recipients. Are they so vulnerable that altruistic donations do not abound? Is altruism equated with exploitation? Are surrogates capable of making their own choices, perhaps even ones that leaders would not have made for themselves?
For more and more countries, the regulating factors will find their way into legal frameworks. And all factors must be considered, ethical, humane and considerate of the plight of intended parents and surrogate mothers, and of their dignity and safety. Without regulation, there will continue to be cases of exploitation, corruption and human rights violations.
In India, surrogacy is considered a gesture of love, not an inspiration of profit.
Selecting the Ideal Country for Surrogacy
An important factor to consider when embarking on the journey of surrogacy is finding a country that will allow for a successful and rewarding experience. Determining whether a country is appropriate for a surrogacy journey is not necessarily an easy task and there are many factors to consider. First and foremost, the country’s laws will play a crucial role in the surrogacy process. Each country’s laws are different, so it is important to have an attorney assist you with understanding the surrogacy process in your country of choice. You will want to know how the surrogate is compensated and whether the surrogate will have any parental rights or obligations with respect to your child. It is also important that the country you choose will recognize you as the child’s legally recognized parents. In addition to the country’s laws, you will also want to consider the logistics of initiating the process. Specifically, you will need to determine how and where you will find your surrogate, how you will collect the necessary sperm and egg and how the doctor’s office protocols will work . Of course, the costs associated with the surrogacy process will also be a major factor in choosing a country in which to proceed. You may want to perform a cost analysis on the entire process in different countries to determine which is the most feasible for your budget. Lastly, you and your partner will want to review how comfortable you are with common potential drawbacks and risks. For example, you may want to consider whether you are comfortable traveling abroad for an extended period of time and whether you are okay with the potential of evolving changes in the law to make a surrogacy journey less successful than expected. There are many factors that you will want to consider when deciding which country is appropriate for your surrogacy journey, so be sure to do your research. There are many great resources available, including various forums that can help connect you with other individuals who have navigated the surrogacy process.