Why is Surrogacy Illegal?

Surrogacy is the fertility treatment where a woman who is referred to as the surrogate agrees to get pregnant and carry a baby to term for an individual or a couple that is referred to as the intended parents. Since it sounds so helpful, many people wonder why is surrogacy illegal. The treatment is highly controversial and complicated in terms of its legality and its logistics. This is especially true for couples from regions where the treatment is prohibited who, then seek the treatment in countries with favourable laws. 

Surrogacy is illegal in some countries completely. In other countries, only a particular type of surrogacy is legal while some other countries accept and practice all forms of surrogacy. This has led to the rise in international surrogacy and transnational surrogacy. This may also be due to the benefits of cost reduction, fewer legal issues and the opportunity to visit other countries.

Where is surrogacy illegal?

These countries completely ban all forms and types of surrogacy, or they make the process of surrogacy impossible in different ways, like making the contracts unenforceable. While it may be very likely that one form or another of surrogacy may be practised in those countries, it is advised that intended parents not consider those countries for their surrogacy treatment. This is due to the legal issues that they may face. Some of these countries include:

• Denmark
• France
• Germany
• Ireland
• Italy
• Portugal
• Nepal
• Bulgaria
• Spain
• Cambodia

Where is surrogacy restricted?

These countries may allow surrogacy but only on certain conditions which may prove to be complicated. These countries usually do not allow any compensation for surrogacy. This means that the surrogates cannot be paid for their services, but they may be reimbursed for any of their medical expenses that are tied directly to the surrogacy process. Some others may only allow one form of surrogacy, like traditional surrogacy, meaning that the intended parents must provide a close friend or relative who is willing to carry out the surrogacy for them. 

In other countries, surrogacy treatment is banned entirely for non-citizens, making it impossible for international surrogacy to be practised there. Intended parents choosing a country that has restricted surrogacy in one form or another may result in issues when they try to bring their baby out of the country to their home country. On the other hand, some of these restrictions are designed to make the surrogacy process safer and remove exploitation of the surrogates; things which may be obtainable in countries with no restrictions. Examples of countries with these restrictions include:

• Canada – only allows traditional surrogacy
• Georgia – only allows surrogacy for her citizens
• Australia – only allows altruistic surrogacy

Where is surrogacy legal?

Surrogacy is legal and faces limited restrictions in the following countries:

United States of America

Surrogacy is legal in most states in the USA, with no particular law or regulation governing the treatment. The child from surrogacy’s parentage is recognized by a judge during the surrogate’s pregnancy. The judge bases the decision on the agreement of the parties before the surrogacy is done, as well as the decisions of the courts in previous cases. The United States of America is a leader in the surrogacy industry, having been the first to acknowledge intended parentage during the legal process. The country doesn’t discriminate in race or sexuality when considering surrogacy treatments. The intended parents are not mandated to contribute genetic material in the surrogacy process.

Ukraine 

In this country, surrogacy is regulated by national law. Only married couples with recognized medical or fertility issues may carry out the surrogacy treatment. The couple must be heterosexual as well. They are also required to contribute genetic material to the surrogacy process. The male is the one normally required to provide the genetic material, while the female provides evidence of the serious risk or the impossibility of pregnancy, usually with a signed medical certificate.

Greece 

The country only previously allowed surrogacy for its citizens, but they recently opened up the process for foreigners. Greek law grants only women the right to surrogacy; single men are not granted the right. Surrogacy is open to only heterosexual couples and single women in Greece. It is also not mandated to contribute genetic material to the process of surrogacy. The parentage of the child is decided by the judiciary. Therefore, it is possible to recognize the parentage of either the intended parents or just the single mother.

Mexico 

The country is a federal state, which means that each of the individual states has its own civil, criminal and prosecution code. Recently, however, the Supreme Court of Mexico ruled that surrogacy should be legal in all the states. However, not all states have adopted the ruling, but in states like Sinaloa and Tabasco surrogacy is legal. Before starting the surrogacy process in Mexico, it is important to obtain judicial authorization. This is usually obtained without any issues to the intended parents. However, some factors that are needed to obtain a favourable ruling are the absence of criminal records and possession of a decent economic level that would guarantee a decent life for the child. Mexico is like the USA in surrogacy as it guarantees all the perks that an intended parent would have gotten in the USA but at a cheaper price.

Russia 

In this country, surrogacy is regulated by a clear law, both in its gestational and altruistic forms. Also, citizens and foreigners have access to gestational surrogacy as well. The country offers legal security and ample medical services, the quality of fertility clinics is also very high, and patients can request exclusive and personalized surrogacy packages. Surrogacy in Russia is well regulated by law, and there is usually amicable jurisprudence on the treatment. The intended parents are also required to demonstrate infertility to access the program, but that is not always the case. Although the law in Russia only allows the surrogacy treatment for heterosexual couples and single women, there have been subsequent rulings in some Russian courts that recognize parenthood to single men to protect equity and the non-discrimination between the sexes.

Kazakhstan 

The legal situation in the country is similar to that seen in Russia. However, the cost is similar to that obtainable in the USA. This makes the surrogacy pursuit less attractive in that country.

Countries with no recognized surrogacy laws

These countries have no particular law for surrogacy treatment. Surrogacy is practised unregulated, and sometimes it is abused. Some of these countries include:

• Nigeria
• Kenya
• Cyprus