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?
Please note that this is for information only purposes and is not intended as legal advice. If you need legal advice regarding your specific situation, we strongly recommend that you consult a competent, licensed family law attorney who is familiar with these issues. It is also important that you understand that the information provided here in no way constitute, and should not be relied upon, as legal advice.
The following is a summary from around the world:
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. 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 were 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. Quebec law, however, does not recognize surrogacy arrangements, whether commercial or altruistic.
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).
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.
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. 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.
There is no law in Ireland governing surrogacy. In 2005 a Government appointed Commission published a very comprehensive report on Assisted Human Reproduction, which made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would under Irish law be regarded as the parents of the child. Despite the publication there has been no legislation has been published and the area essentially remains unregulated.
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.
All surrogacy arrangements (both commercial and altruistic) are illegal.
In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.
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. 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.
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 fertilization 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 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.
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 recognized 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. States generally considered to be surrogacy friendly include California, Illinois, Arkansas, and Maryland, among others. 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. The Human Rights Campaign has put together a list of surrogacy laws by State.