International Surrogacy - what prospective parents need to know (Part 1)

International surrogacy arrangements have received very bad press in recent times. The proliferation of stories involving immigration complications, debates over exploitation and lengthy delays in establishing parentage, may have resulted in would-be parents changing their minds about having a child via this method.

Whilst there are risks involved with becoming a parent via international surrogacy arrangements, couples who have obtained the necessary advice and taken the necessary precautions can help protect themselves against these risks. This series of articles examines some of the issues that prospective parents should seek legal advice on.

1. Selecting a jurisdiction where surrogacy arrangements are legal and the couple is “eligible”

It is important that commissioning parents (i.e the couple seeking to parent the child after birth) do their research into the jurisdictions where surrogacy arrangements are legal. In certain countries, including France, Germany, Japan and Pakistan, surrogacy is illegal. Despite India’s previous reputation as being a “surrogacy-friendly” country, international surrogacy arrangements are now against the law and foreign couples can no longer commission children from Indian surrogates.

The position is more complex in respect of Federal countries, such as America, where surrogacy is legal in some states (for example California), but not in others (such as New York). Whilst America has traditionally been a popular country for surrogacy arrangements, it is also an expensive destination (due to the level of payment expected by surrogates and the cost of medical care) and may be prohibitively so for most commissioning couples. The gap left by India (considered to be a less expensive destination) is now being filled by Ukraine where surrogacy is becoming ever more popular. Both California and Ukraine allow “commercial” surrogacy which means that the surrogate mother can be paid for carrying the child, as opposed to England and Wales where commercial surrogacy is illegal and the surrogate can only be paid their “reasonable expenses” (i.e the surrogacy arrangement is “altruistic”).

It is important to note that surrogacy in Ukraine is not open to all. To be eligible for surrogacy in Ukraine, the commissioning couple must be childless, married and heterosexual. The commissioning mother also needs to be able to provide evidence as to why she is unable to conceive/carry a child herself.

In California, the position is more liberal. Commissioning parents are able to enter into legal surrogacy arrangements regardless of their marital status or sexuality, although it is worth noting that, in England and Wales, single commissioning parents cannot yet apply for a Parental Order. California is also considered one of the safest places to arrange surrogacy, along with other states (such as Illinois) where there are legal frameworks in place that are supportive to surrogacy.

As the examples above demonstrate, there is no international law governing surrogacy arrangements. Each jurisdiction has its own laws and frameworks in place, ranging from a complete ban on surrogacy, to very liberal and relaxed laws. Couples who are looking to commission a surrogate from abroad must therefore do their research before selecting a jurisdiction.

If you would like any further advice regarding this, or any other, family law issue please contact a member of our specialist Family Law Team.