Innovative Solutions and Global Regulations for Surrogacy
United States
In the United States, just like in Australia, there's a split between the laws everyone has to follow - that's the Federal law - and the rules specific to each state that apply to its residents. Right now, there's no federal law for surrogacy, which means even though the U.S. is known as a super liberal country for surrogacy, you must pay attention to the laws in each state because the laws on parenthood and surrogacy eligibility can be totally different depending on where you are. Surrogacy is not permissible in Louisiana, Michigan and Nebraska.
Some of the more surrogacy friendly states include California, Washington D.C., Idaho, New Hampshire, Rhode Island, Washington, New Jersey, Vermont, Nevada, Connecticut, and Delaware are all top contenders. In these states, you are allowed to apply for a pre-birth order( a legal document that establishes the intended parents as the legal parents of the child) no matter your sexual orientation or marital status. These states are also open to both altruistic and commercial surrogacy and enforce surrogacy contracts, so no worries about the surrogate mom changing her mind and keeping the baby.
If you're thinking about conceiving a child through surrogacy in the U.S., you're looking at shelling out around $140,000 to $150,000. The most popular state in the U.S to undergo the surrogacy process is California due to their top notch fertility clinics and comprehensive laws governing surrogacy
United Kingdom
Surrogacy is permitted in the United Kingdom, however there are some key factors to consider before choosing this country as a place you would like to undertake surrogacy treatments in. The first thing to consider is that the surrogate mother is viewed as the child’s legal parent until a parental order or adoption papers are signed, giving the intended parents full custody of the child. The second thing is that surrogacy agreements are unenforceable contracts, and if an issue of parenthood were to arise, it is up to the Courts to make a decision that would be in the child’s best interest.
In terms of payment agreements, in the UK, you are able to compensate the surrogate for reasonable expenses incurred whilst pregnant. There is no legal definition of ‘reasonable expenses’ thus the agreement for the amount paid must be determined by the intended parents and the surrogate. Even though this is the law; there have been no cases to date in the UK where a parental order was refused because the surrogate was paid ‘too much’. In the UK it is illegal to advertise your wish to act as a surrogate, procure a surrogate or act as a third party facilitating surrogacy arrangements. Thus, the onus is on the intended parents to find a suitable surrogate themselves. There is no upper age limit for couples or women using surrogates in the UK, and the women can be surrogates until their mid to late 40s . The cost of using a surrogate starts at £60,000 and costs might increase depending on whether or not the eggs used are the intended mother’s own or if the sperm used is donated as well. Double gamete donation with a surrogate is not allowed under UK law. If you are interested in starting your surrogacy journey in the UK, you can contact Surrogacy UK, COTS, Brilliant Beginnings or my surrogacy journey.
China
Surrogacy is neither legal or illegal in China, according to the Administrative Measures for Assisted Human Reproductive Technology (人类 辅助生殖技术管理办法) medical professionals are barred from performing any surrogacy procedures. In article 22 of the 2001 Administrative measures for Assisted Human Reproductive Technology, violating medical institutions shall be fined no more than 30,00 yuan and the relevant responsible personnel shall be subject to administrative sanctions, and potentially shall be subject to criminal liabilities. There is no legislation to date which expresses specific rules against the practice of surrogacy in general; meaning that 3rd parties have been allowed to flourish all across China. The laws set in place by the administrative measures for assisted Human Reproductive technology do not express a prohibition on surrogacy.
While surrogacy remains a legal gray area in China, it has not stopped thousands of Chinese couples to explore this route. In order for a Chinese couple to use a surrogate, they must get in touch with Reproductive Assistance consultants in China, who will arrange surrogacy services with a clinic outside of China, where the organizer will find a willing surrogate, and in the case of LGBTQ couples, will arrange to procurement of donor eggs or sperm. Due to the nature of the prohibitive laws surrounding surrogacy in China , anyone looking to use this service to conceive a child should expect to pay $150,000-200,000$ for the chance of having a child.
Singapore
In Singapore surrogacy is not banned by law, however the Ministry of Health in Singapore has prevented Assisted Reproductive centres in Singapore from carrying out surrogacy procedures, meaning that centres that carry out surrogacy arrangements are at risk of losing their licenses. The option for couples in Singapore to go abroad to countries like the U.S where commercial surrogacy is legal is allowed. However, petitioning for adoption for a baby conceived by surrogacy in Singapore is complicated. In the case of UKM v Attorney-General, a gay SIngaporean couple who had a surrogacy arrangement in California, their petition for adoption for their child was nearly refused, as a judge in the High Court of Singapore cited Section 11 of the adoption of Children’s Act which states, “It shall not be lawful for any adopter or for any parent or guardian except with the sanction of the court to receive any payment or other reward in consideration of the adoption of any infant under this Act or for any person to make or give or agree to make or give to any adopter or to any parent or guardian any such payment or reward."
Luckily the defendant was able to adopt his child as the courts ruled that payment after assessing that payment was made to adopt the child "with a sincere desire to benefit and promote [the child's] welfare”. So far in Singapore, 10 out of 14 adoption applications for children born through surrogacy have been approved. It is not recommended for Singaporeans to go abroad for surrogacy as there is no guarantee that the petition for adoption will be approved.
Korea
In Korea,similar to the trend in China and Japan, it is neither permitted nor forbidden. If a Korean couple uses a surrogate in a foreign country , they may be subject to criminal punishment in that foreign country but not in Korea. When it comes to compensation of the surrogate mother, there is no law in Korea that specifies whether or not this is permissible.
The Ethical Guidelines for Assisted Reproductive Medicine of the Korean Society of Obstetrics and Gynecology amended as of 1st July 2017, do not prohibit the surrogacy but set forth some conditions for conducting procedures of surrogacy. It is noteworthy that the Guidelines provide that the conduct of Assisted Reproductive Technology (“ART”) for surrogacy has to be reviewed by the relevant institution’s bioethics review committee. This could mean that the conduct of artificial insemination/ implantation of an embryo into a surrogate could be prohibited.
The validity of surrogacy agreements in Korea is questionable. On one hand there is a substantial number of people who believe that the idea of a surrogacy agreement violates Article 103 in the Korean Civil act which states , “A juristic act which has for its object such matters as are contrary to good morals and other social order shall be null and void.” In contemporary Korean society, there is still a stigma or belief that surrogacy is immoral and therefore contrary to the public good.
Based on the lack of clarity when it comes to public policy and law in South Korea, it is not recommended as a destination to arrange a surrogate/ surrogacy agreement.
Japan
Surrogacy is neither illegal nor legal in Japan. Commercial surrogacy is definitely impossible in Japan, as surrogacy contracts are not recognized as they interfere with public interest. Any payments involving surrogacy are considered a criminal offense. In order to establish paternity, the couple using the surrogate has to initiate adoption in order to the right for their biological child. In addition, Japan upholds the right of the surrogate mother to keep the child if she changes her mind in turning over the child.
In the cases where surrogacy has been allowed in Japan, both of the gametes provided need to come from the parents, and the surrogate must be related to one of the parents (i.e a sister, cousin, etc). The Surrogate Mother is also viewed as the legal mother of the child in Japan, so in the rare cases that surrogacy does occur, a petition for adoption must be set in place, so the intended parents of the child receive custodial rights after the child is born.
Due to the nature of the stringent requirements, it becomes clear that homosexual couples cannot use surrogates, as one of the gametes used would have to come from an external source. And what also becomes clear is that the opportunity to use a surrogate to conceive is limited.
Malaysia
At present, there is no legislation regulating surrogacy practices. It is important to note that Malaysia has a dual legal system, one legal system is reserved for Muslims, who are governed by Sharia Law and non-Muslims are governed by Civil Law. In 2008, the NAtional Council of Islamic Religious affairs issued a fatwa( formal ruling in Islamic law ) prohibiting the practice of surrogacy for Muslims. For non religious peoples in Malaysia, the Civil Law rules in favor of the rights of the surrogate mother and not to the intended parents. For a married surrogate mother, her and her husband are considered the legal parents of the child, regardless of the lack of biological relation to the unborn child. Section 112 of the evidence Act 1950 states’ The fact that any person was born during the continuance of a valid marriage between his mother and any man,...shall be conclusive proof that he is the legitimate son of that man’. This means that the surrogate mother can keep the unborn child if she chooses and the child will bear the nationality/ citizenship rights through the surrogate husband. For an unmarried Malaysian surrogate mother,the surrogate still holds guardianship and custodial rights of the child, the biological father is not vested with any rights over the child and the citizenship of the child would be the same as the surrogate mothers. In order for the intended parents to have custodial rights of the child, the parents would have to adopt the child, of course this is dependent on the surrogate mother’s willingness to give up the child. THe written consent of a surrogate mother is required.Payment or reward for adoption of the child is strictly prohibited, so any payment given to the surrogate mother must be related to pregnancy and birth related expenses. In the case that the court discovers that an extraneous payment is made, this may jeopardize the prospects of any proposed adoption. Even though in Malaysia, the surrogate mother has ultimate say on the final decision of the parental rights of the child, there are some clinics which have policies to try and ensure that the surrogate mother will give up the right of custody to the child once it is born, and the intended parents must petition for adoption after the arrival of their child. The policies in these clinics may also include no contact orders, in which neither the intended parents have the right to contact the surrogate after the birth of the child, and the surrogate cannot reach out to the child in order to form a relationship. It is important to note that these policies are not laws, and as such will not be upheld in court if challenged. The role of these policies is to serve as a framework in which both parties involved are operating under good will, so each party is clear of the motive of the other party, and these policies may clarify some confusion in the nature of the arrangement. Surrogacy agreements in Malaysia may be rendered void for violating public policy, sections 24(e) of the Contracts Act 1950, states that ‘ the court regards it as immoral, or opposed to public policy. Every agreement of which the object or consideration is unlawful is void’. Even though surrogacy in Malaysia is a big gray area, there are of course clinics that offer this service. The most popular clinic to offer this service is GoIVF in Malaysia, and their pricing for surrogacy is between $47,000-$100,000, the higher price point reserved for couples who need to use donor eggs.
Greece
In Greece Altruistic Surrogacy is legal, however you need a court authorization to proceed with surrogacy.The conditions that the intended parent(s) and surrogate need to meet in order to proceed are: The commissioning mother should prove that she is unable to carry a child to term due to medical reasons. The commissioning mother should not exceed the age of fifty- two The surrogate mother should prove to the court that she is medically and mentally healthy. The surrogate mother and intended parents should submit their written agreement to the court. The agreement could provide for compensation of expenses. The payment for services and any kind of financial benefit is strictly prohibited. In case that the surrogate mother is married, her husband should also consent in writing by signing the written agreement. The fertilized ova should not originate from the surrogate mother It takes approximately 30-60 days for a judge to make a decision after the hearing date, and once the decision has been made, both parties have the option to contest the decision within 30 days of the decision. Commercial surrogacy in Greece is illegal, therefore the payment of the surrogate is capped at £10,000, an equivalent of a year's salary that they might have lost because of the doctor’s appointments and other health check ups they needed to attend. Greece has the unique advantage of the intended parents being recognized as the legal parents from birth. The requirements of the surrogate are that she (is) Less than 50 years old Healthy permanent resident of Greece ( not necessarily a Greek Citizen) has a child of her own does not own the eggs used to get her pregnant Has had no more than 2 c sections The intended parents who need to use a surrogate can be married heterosexual couples, cohabiting heterosexual couples or single women. Single men or gay/ lesbian couples are not allowed to use a surrogate. Also, there is an age limit for the intended mother as she must be less than 54 years old. No such age limit exists for the intended father. Pregnancy with a surrogate in Greece costs $85,000-$100,000. Some of the clinics in Greece able to coordinate your journey with a surrogate are: Mediterranean Fertility Institute, SerumIVF and Embryoland Fertility Center. Please do your own research and reach out to as many clinics as you can in order to start your journey.
The Netherlands
In the Netherlands, surrogacy is legal, however this does not mean that it is easily accessible nor easy to arrange. Part of surrogacy being legal in the Netherlands is that the couple requiring the surrogate needs to know the surrogate before arranging any treatment. The couple looking for a surrogate can not announce it publicly for example on social media. The surrogate can be paid for the service provided, however it is up to both parties to come to an agreement on how much can be paid. It is also illegal to promote commercial surrogacy, therefore agencies are not allowed to advertise for the purpose of recruiting surrogates. Though on the surface, it appears that since surrogacy is legal ; honoring the surrogacy contract and establishing parental rights is unenforceable and relies on the good will of both parties. The surrogate mother cannot be forced to give up the child she carried, and in order for the intended parents to take in their child, they need consent from the Child Care and Protection Board. Once the consent is granted, a judge will remove the parental authority of the surrogate over the child and grant it to the intended parents. Other things to keep in mind is that the maximum age for a surrogate is 45 years old, and conceiving a child via surrogacy is expected to cost around €90,000.Another bonus is that both gay couples and heterosexual couples may use a surrogate in the Netherlands- a rule that is rarely accepted in the rest of Europe.
Portugal
Portugal has recently allowed surrogacy to be a service provided to women and couples struggling with fertility. However, there are some conditions that the intended parents have to meet in order to use a surrogate: firstly it must be established that the intended mother cannot carry a baby to term herself due to a condition or illness. Since there is a prerequisite of establishing that a woman cannot successfully carry a baby, this means that gay men are excluded and unable to use a surrogate. Another point to consider is that any surrogacy agreement needs to be overseen by the National Council for medically assisted procreation so they can get approval to begin the process. The requirements that the surrogate has to meet in order for the arrangement to be approved is that she has already had one child. The law also allows for the surrogate mother to back out of the agreement within 20 days of giving birth. Commercial surrogacy is not allowed, and only medical fees can be reimbursed. There is no clear guideline on how much the surrogate mother can be compensated for her time and effort. Due to the strict approval requirements, lack of guidelines for single women, and the option for the surrogate mother to back out of the agreement once the child is born and potentially keep the child, I would not recommend Portugal as a country to procure surrogacy services. Czech Republic: Surrogacy is not illegal in the Czech Republic, but it is not legal either. This means there is no framework to protect the intended parents and most importantly the rights of the surrogate mother. The surrogate mother is not allowed to be paid for her service, any remuneration awarded to the surrogate is viewed as a criminal offense that may be punishable by three years in prison. In terms of who is seen as the legitimate mother of the child this is a big legal problem as the intended parents are not automatically viewed as the legal parents of the child. In Czech law the woman who carried the child is viewed as the mother of the child, irrespective of the fact that the eggs used may not be her own. This does mean that couples who have used a surrogate in the Czech Republic need to apply for adoption once their biological child is born. Surrogate contracts are unenforceable in the Czech Republic which means that if either party decides to back out of the decision once the child is born, there is no way to settle these disputes. Due to the challenges surrounding the legality of surrogacy, in order to use one in the Czech Republic , the couple intending on receiving treatment would need to find the surrogate themselves. And it is up to the clinic treating the surrogate to provide or decline treatment. If you are looking into surrogacy in the Czech Republic it is important you reach out to clinics that will treat a surrogate such as ReproFit and get their advice on how to proceed.
Australia
Surrogacy is legal in Australia; however, it must be an altruistic arrangement, not a commercial one. This means that the only fees allowed to be paid are towards medical expenses or time off work for the surrogate. Additionally, surrogacy in Australia must be a gestational arrangement, wherein the surrogate has no biological relation to the child being born; therefore, the use of the surrogate's eggs is not permitted.
Australia presents a unique case as it consists of six federated states, each having different laws governing surrogacy arrangements. For instance, in New South Wales and Queensland, the intended parents and the birth mother must be at least 25 years old and residents of their respective states. In NSW, it is illegal for residents to travel abroad for commercial surrogacy, while in Queensland, intended parents must have sought legal advice.
Tasmania and Western Australia have similar laws regarding surrogacy, with a few minor differences. In Tasmania, surrogacy arrangements are managed by the Surrogacy Act, whereas in Western Australia, they are overseen by the Reproductive Technology Council. In both states, the surrogate must be at least 25 years old and have given birth previously. However, in Tasmania, a medical need must be established for the surrogacy, and all parties involved must be residents of Tasmania and have undergone counseling and received legal advice. In Western Australia, all parties must sign an agreement approved by the Reproductive Technology Council and undergo physical and mental evaluations.
In South Australia, the surrogate must be at least 18 years old, a resident of South Australia, and have received counseling and legal advice. In Victoria, all surrogacy agreements are governed by the Assisted Reproduction Treatment Act and must meet the requirements set by their review panel. The intended parent(s) need to demonstrate their need for a surrogate, all parties must be residents of Victoria and have received counseling, and the surrogate mother must be at least 25 years old. In all states, upon the birth of the child, the surrogate mother must sign a parental order transferring parental rights to the intended parents.
Regarding the cost of surrogacy in Australia, it remains unclear as it varies from case to case, depending on the intended parents' location, whether they are required to make a government application before the surrogacy agreement, and if counseling and legal advice are necessary for both the intended parents and the surrogate. The World Center of Baby estimates that intended parents should expect to pay $100,000 to $150,000 per child born through surrogacy, while other sources cite a range of $70,000 to $80,000. Legal fees and counseling alone could account for $10,000 to $20,000, with the remaining costs covering the surrogate's medical fees.
Japan uses Assisted Reproductive Technology more than any other country in the world. THis could be due to the fact that they are trying to reverse the trend in their population demographics, but despite these efforts, access to assisted reproductive technologies has not made much of a difference to the overall fertility rate in Japan. In Japan, egg donation is not legal or illegal as there is no specific legislation mentioning egg donation. The lack of legals clarity surrounding egg donation has meant individuals, cultural norms and attitudes have been shaping the accessibility of the egg donation procedure and access to donated eggs. Currently, the Japanese Society of Obstetrics and Gynecology announced that the use of an egg from a third party is forbidden, however the Japanese Institution for Standardizing Assisted Reproductive Technology (JISART) announced that couples could use egg donors, provided they could not conceive due to factors excluding age related infertility. This is not very helpful as most couples seeking donor eggs need them because they are experiencing age -related fertility issues. Nevertheless, let’s say you fit the criteria provided, would there be any other obstacles getting in the way? Absolutely. Firstly, many Japanese people think using donor eggs is unethical, and this is highlighted by a survey conducted in 2011, where 47.5% of doctors surveyed said they would refuse treatment to a couple who was hoping to give birth via egg donation. Up until recently, The Japanese Ministry of Justice asserted that couples and children with no blood relationship have no legal parent-child relationship; however in 2020, the national legislative body of Japan has made a ruling that women using donor eggs were to be seen as the mother, and a husband who consents to his wife giving birth with donated sperm will be unable to deny that he is the child's father.
Although this is a step in a positive direction, due to the lack of clear guidelines in treating couples with donor eggs, there are many questions that are difficult to answer: such as what is the age limit to receive treatment? Can someone infected with HIV or Hepatitis receive treatment? Do couples have to be married to receive treatment ? Etc
Perhaps due to the unclear guidelines and regulation, a lot of Japanese couples prefer to go abroad to get treatment. Taiwan and Hawaii have been attractive options for these couples due their proximity to Japan, plethora of Asian egg donors and clear and accessible information and legislation. Egg donation in Japan leaves a lot to be desired, so it is not recommended as a location to receive treatment.