Surrogacy is a valuable tool that enables individuals and couples who are unable to conceive naturally or carry a baby to start their family. However, with scientific advancements fast overtaking the speed of legal reform, they are often left to tackle the minefield of legal parenthood thereafter.
There are different jurisdictions available for couples looking at surrogacy, but the legal status, cost and legal security can vary significantly.
England & Wales
Surrogacy is legal in England & Wales, operating under a framework of legislation designed to protect the interests of both the intended parents and the surrogate, as well as the children.
The journey towards surrogacy legislation started in 1985, with the birth of ‘Baby Cotton’. Baby Cotton was born to Kim Cotton, the first known surrogate mother in the UK to be paid for her services. A media frenzy ensued, sparking public debate which highlighted the urgent need for legislation to regulate surrogacy. This resulted in the Surrogacy Arrangements Act 1985, the first piece of legislation to directly address the practice of surrogacy.
Various other legal instruments have since been introduced, including the Human Fertilisation and Embryology Act 1990 and 2008, the Human Fertilisation and Embryology (Parental Orders) Regulations 2010, Part 12 of the Family Procedure Rules 2010 and Section 1 of the Adoption and Children Act 2002.
While non-commercial surrogacy is legal in the UK, there are several restrictions which deter people from pursuing domestic surrogacy:
- Surrogacy agreements are not enforceable and not legally binding.
- It is illegal to arrange or negotiate a commercial surrogacy arrangement.
- It is an offence to advertise either for a surrogate or to be a surrogate.
Intended Parents do not automatically acquire legal parenthood when the child is born. The birth mother is always considered to be the legal mother. If she is married, her partner is the legal father (or second parent). To become the legal parents, the Intended Parents must apply for a Parental Order after the child’s birth. A parental order extinguishes the birth mother’s (and the second legal parent/husband’s, if applicable) legal parenthood and transfers the parenthood to the Intended Parents. This allows for a British Birth Certificate to be issued, naming the Intended Parents as the parents.
To apply for a Parental Order, the mandatory criteria set out in s.54 and 54A of the HFEA 2008 must be met, and an application can only be made after the child is born, leaving Intended Parents in limbo.
Many therefore pursue surrogacy abroad, especially as in some jurisdictions the Intended Parents are recognised as the legal parents as soon as the baby is born. However, for British Intended Parents, foreign orders are not recognised and the surrogate retains her legal parenthood and rights to the child unless and until a Parental Order is obtained.
Surrogacy legislation in other jurisdictions
The legislative approach to surrogacy varies widely across jurisdictions, with some countries having more permissive frameworks and others imposing stricter regulations or outright bans. These can be classified into three groups:
- Jurisdictions that prohibit surrogacy.
- Jurisdictions that permit surrogacy and have a legal framework in place.
- ‘Three Monkeys’ Jurisdictions: don’t see, don’t hear and don’t talk. There are no laws in place, but the practice occurs.
United States: is one of the most popular international surrogacy destinations, with surrogacy laws differing by state. Many states, such as California, have well-established laws that allow commercial surrogacy and grant Intended Parents legal parenthood through pre-birth orders, ensuring that they are recognised as the legal parents from birth.
Ukraine: until recent events a popular destination for international surrogacy due to its more liberal approach, permitting commercial surrogacy for foreign heterosexual couples. Ukrainian law automatically grants legal parenthood to the Intended Parents, providing them with immediate and full parental rights from birth.
Georgia: like the Ukraine, Georgia permitted commercial surrogacy for foreign heterosexual couples, recognising the Intended Parents as the child’s legal parents from birth. However, a prohibition on surrogacy for foreign Intended Parents was announced in June 2023 but is not yet in place.
Canada: altruistic surrogacy is permitted, with Intended Parents able to enter into a legally recognised surrogacy agreement which enables them to be recognised as the legal parents from birth.
India: once a hub for international surrogacy, recent legislation banned commercial surrogacy and allows only altruistic surrogacy for Indian nationals.
Cuba: permits altruistic surrogacy for couples and individuals. However, Intended Parents need to have attempted all the other methods of reproduction available.
Greece: permits surrogacy to heterosexual couples and single mothers. However permission of the Court is needed before embarking on the surrogacy journey, requiring evidence that surrogacy is the only viable option due to medical reasons.
Mexico: surrogacy is unregulated in most states, but two states have civil codes regulating the practice. Sinaloa restricts surrogacy to married couples with proven infertility, and Tabasco, until 2021, to married Mexican couples. In 2021, an application against the legislation in Tabasco led to a judgment from the Supreme Court, which highlighted the need for national jurisdiction on surrogacy. The Supreme Court ruled that surrogacy should be accessible to every individual, regardless of sexuality, nationality or marital status. The lack of national legislation has made Mexico a jurisdiction where surrogacy arrangements take place, but in some cases administrative barriers result in a situation of reproductive asylum like in Argentina. There was an attempt to legislate nationally in their new Civil Code in 2015. Following 21 proposals to legislate but no national legislation or prohibition so far, the practice continues. A Guide to Good Practice encourages court approval pre-birth, with many receiving this approval post-birth.
Colombia: permits altruistic and gestational surrogacy, confirmed by the Colombian Constitutional Court in 2009. While the Court set out a list of requisites that the Intended Parents and surrogate need to meet, there is no specific legislation in place. Legal rights and parenthood can only be transferred after birth.
Ireland: has no legislation governing surrogacy, with a Supreme Court ruling in 2023 noting the lack of legislation. This has caused issues, with the recent case of Brian Dowling hitting the press after sharing that he is not legally recognised as the father of his two children born following a surrogacy arrangement.
In contrast, surrogacy is entirely prohibited in countries like France, Germany, Italy and Spain, where surrogacy agreements are not recognised, and legal parenthood is automatically vested in the birth mother. Intended Parents in these jurisdictions face significant legal hurdles, often having to go through adoption procedures to gain legal recognition of their parentage.
Conclusion
With varying approaches and risks that practices are made illegal, or frameworks being changed, independent research is vital before Intended Parents commit to a surrogacy, whether domestic or abroad. Consideration of potential issues, restrictions and prohibitions are paramount.
While the current framework in England & Wales offers significant safeguards, it also presents challenges that can lead to legal uncertainties, delay and emotional stress. By looking to other jurisdictions and learning from their approaches, we can modernise and improve our surrogacy laws, ensuring that they are fit for purpose in the 21st century. Reforming the legal framework to provide clearer, more certain, more streamlined and more supportive processes will better protect all parties involved in surrogacy arrangements. The recognition of Intended Parents as the legal parents from birth would be a step in the right direction.
Modern families require modern laws, and surrogacy is no exception.
Carolina Marín Pedreño is a partner and Aysel Akhundova is a senior associate at Dawson Cornwell LLP
