Assisted Reproduction Attorney
Co-founder, Brilliant Beginnings Surrogacy Agency and NGA Law
Law Office of Brian Esser
The statutes that govern gestational surrogacy vary not just country-to-country but also between jurisdictions within the same country.
Often regional bodies contend with a competing eagerness to help hopeful parents and fears of socioeconomic or gendered exploitation, as well as “commodification of the body”.
Laws change frequently and according to the ICMART 2019 IFS surveillance report, 19% of countries instituted some modification to its policy in the previous three years.
For this reason, amongst others, it's critical to consult with your regional authorities and clinicians on the legality of gestational surrogacy and the nuances therein.
For instance, while surrogacy is technically legal in roughly ~40% of countries, only in a few countries (e.g. the U.S.) can intended parents compensate carriers.
In other countries (e.g. Canada, Israel, the U.K.), only “altruistic” surrogacy is legal, whereby carriers can only be compensated for “reasonable expenses related to the pregnancy”. The reality is that in these countries intended parents have few options (mostly just friends or family) to find a gestational carrier, and the practice is rare.
Some countries (e.g. India) will have differing statutes depending upon where the intended parents are from, while in other countries (e.g. China), surrogacy is mostly banned in all forms outright.
For these reasons, amongst others (including questions of cost and arrangements of citizenship for the child), intended parents often seek gestational surrogacy services abroad.
For context, in the United States, the percentage of gestational surrogacies where the intended parents came from abroad has been on an uninterrupted climb for some time.
Alternatively, countries like India have instituted laws to stem the flow of foreign intended parents from using gestational carrier services within the country.
Typically, pursuing gestational surrogacy abroad creates enormous logistical complexity, not limited to periods (e.g. COVID) where travel is restricted. It’s common for intended parents to feel low levels of comfort with an international agency and worry where, or if, their child will be granted citizenship.
What’s more, both intended parents and gestational carriers tell us they feel the relationship was harder to develop from overseas. Cultural barriers, language barriers, and time zone differences become challenges and many gestational carriers who’ve carried for intended parents abroad can be more likely to feel the relationship is “transactional”.
Before considering gestational surrogacy abroad, it’s important to consult with a reproductive attorney in your territory and in the region you’re considering.
As we mentioned, even within countries, laws may vary jurisdiction-to-jurisdiction. The United States provides the most obvious example.
When intended parents have a child through gestational surrogacy, they need to accomplish two goals: the first is to ensure the gestational carrier does not have rights as a parent to the child. The second is to ensure a partner who is not biologically related to the child can become recognized as a parent to the child. What dictates how easy or hard this is to accomplish is the state where the gestational carrier lives and gives birth.
Some states make this process incredibly easy and selecting a gestational carrier who lives there is a good move. Those states are California, Connecticut, Delaware, Oregon, New Hampshire, New York, Maine, and Nevada. Here, paying a gestational carrier to carry a child is legal, and it’s easy to have both parents placed on the birth certificate a priori. Typically, surrogates who live in these states are able to command higher rates because there is a lower risk that they can complicate matters legally.
On the other hand, nobody pursuing surrogacy should consider doing so with a gestational carrier living or planning to deliver in Louisiana or Michigan, as examples. In these states, it is illegal to pay for a gestational carrier to carry a child, and so the intending parents have virtually no rights and are completely exposed should the gestational carrier want to keep the child.
In the other remaining states and territories, the rules can vary case-by-case, and county-by-county, with varying degrees of precedent and certainty. Gestational surrogacy may be permitted, but ensuring intended parents can be readily recognized as a parent may be cumbersome.
State laws are subject to both interpretation and changes, and so it's important to consult with a reproductive attorney.