The controversial story in the news this month of the Australian couple who used a Thai surrogate to have twins threw a spotlight on surrogacy, particularly commercial surrogacy. Expat Family Health decided to take a closer look at surrogacy and how it is legally considered in different countries.
There are two main types of surrogacy:
Altruistic surrogacy – the exact legal definitions vary from country to country, but essentially the surrogate receives no compensation for carrying a child, outside reasonable expenses (medical costs, compensation for time off work etc.).
Commercial surrogacy – this is the process whereby a woman is paid to carry and birth a child which may or may not be genetically related to her. After the child is born it is legally adopted or privately given to the people who paid the surrogate.
The pregnancy is then defined according to whether it is gestational surrogacy – when the embryo is implanted and therefore the child is genetically unrelated to the surrogate – or traditional surrogacy, where the surrogate is impregnated artificially or traditionally and the child is genetically related to her.
We take a look at the surrogacy laws around the world. Some of these may surprise you.
Altruistic surrogacy is legal in all jurisdictions of Australia. However, arranging any form of commercial surrogacy remains illegal in all states and territories, except the Northern Territory, which has no laws governing any type of surrogacy.
Additionally, New South Wales, Queensland, and the Australian Capital Territory have made international commercial surrogacy an offence.
All types of surrogacy have been illegal in France since 1994.
In Germany surrogacy is banned. The law prohibits any doctor from performing artificial insemination or embryo implantation on a woman who plans to hand over the resulting child to other people. In addition, advertising for a surrogate or organising one by introducing various parties is also prohibited.
India is fast becoming a global centre for surrogacy as commercial type is recognised under Indian law. An estimated 3,000 fertility clinics across India are attracting infertile couples with relatively low prices. Clinics charge couples for surrogacy packages which include , fertilisation, compensation to the surrogate, medical costs, flights, and delivery. In 2013 the government ruled that single people, unmarried couples and gay couples could not enter into surrogacy agreements.
Altruistic surrogacy is legal in the Netherlands. However, there are only a few hospitals which will deal with surrogates, meaning waiting lists are long. Many Dutch couples travel abroad to find a surrogate.
Surrogacy is illegal in Spain. However, Spanish law will recognise children born to a surrogate in countries where it is permitted.
Since the controversial case of Gammy, the Thai government has drafted a law which would make commercial surrogacy illegal. Currently Thailand is a popular destination for fertility and surrogacy tourism.
Commercial surrogacy was made illegal in the United Kingdom under the Surrogacy Arrangements Act 1985. It is illegal to pay anything more than expenses and unless an adoption order is made the surrogate remains the legal parent of the child, even if they’re genetically unrelated.
Surrogacy is regulated on a state level in the US, consequently the laws vary considerably depending on where you live. Surrogacy-friendly states are considered to be California, New Hampshire, Illinois, Arkansas, and Maryland among others. All types of surrogacy are illegal in Michigan, and New York deems commercial surrogacy illegal, altruistic contracts are not penalized, but are not legally recognised either.