A look at surrogacy laws around the world – Part 1

By Melissa Salfi, Vancouver fertility lawyer and family lawyer

There are few things that give me greater joy as a lawyer than helping a surrogate or intended parents through their surrogacy journey. Beyond an academic interest in Surrogacy Law, I have also had the pleasure of meeting the children of family and friends who went through the process.

This is a rapidly evolving area of law, and fertility lawyers expect to see several changes over the next decade. Earlier this year, we saw the State of New York overturn its longstanding ban on commercial surrogacy after an almost decade-long battle following the introduction of the bill in the New York State Assembly. New York’s Child-Parent Security Act finally came into effect on February 15, 2021, legalizing compensated gestational surrogacy. On March 1, 2021, new legislation came into force in Saskatchewan, modernizing the law on parentage, which now considers assisted reproduction and surrogacy. Saskatchewan’s The Children's Law Act, 2020 allows persons other than biological parents to be legally recognized as parents.

In addition to changing quickly, Surrogacy is also a field that is fraught with challenges, risks, and conflicting opinions. At the start of the pandemic, we saw over 100 babies born to surrogates in the Ukraine stranded from their intended parents due to lockdown and travel bans. Despite legal contracts and careful planning, many intended parents heartbreakingly missed the birth of their child and their first weeks of life. The ethical debates surrounding the commercialization of surrogacy remain heated and will likely continue to influence proposed legal amendments in years to come.

Surrogacy laws are complex and vary greatly from one jurisdiction to another. In some jurisdictions, such as France, Germany, Finland, and Iceland, all surrogacy arrangements, whether commercial or altruistic, are illegal. In other jurisdictions including New Zealand, the UK, and most of Australia, only altruistic surrogacy arrangements are legal, meaning a surrogate cannot be financially compensated for her services. This is also the law in Canada where our federal legislation, the Assisted Human Reproduction Act, prohibits the payment of any consideration to a woman for acting as a surrogate. A surrogate can, however, be reimbursed for specific expenses set out in the Reimbursement Related to Assisted Human Reproduction Regulations, which came into force on June 9, 2020. In jurisdictions where only altruistic surrogacy is legal, it is often a criminal offence to pay a surrogate. In Canada, a person found guilty of paying a surrogate, offering to pay a surrogate, or advertising that it will be paid could be liable to a maximum fine of $500,000 or to imprisonment for a term not exceeding ten years, or to both.

Commercial surrogacy, also known as compensated or paid surrogacy, is legal in jurisdictions such as California, New York, the Ukraine, Iran, and Georgia (the country). In these jurisdictions, a surrogate can be paid for her services. The regulations vary greatly as do the amounts a surrogate can be paid.

A major source of controversy in this area has been the distinctions made between certain segments of the population, with the laws excluding primarily same-sex couples and single individuals from entering into surrogacy arrangements. For instance, some states in the US only permit surrogacy for married heterosexual couples. Western Australia similarly prohibits single people and same-sex couples from entering into surrogacy arrangements. In Greece, surrogacy is open to heterosexual couples or single females. Gestational surrogacy is now legal for infertile heterosexual couples and homosexual men in Israel, after the Israeli Supreme Court found the restriction on same-sex couples to be discriminatory in February 2020. In Portugal, surrogacy is only legal for heterosexual and lesbian couples. Other jurisdictions such as Thailand and India have banned foreigners from entering into a commercial surrogacy arrangement following controversial incidents, most notably the baby Gammy case.

The distinction between traditional surrogacy and gestational surrogacy is reflected in surrogacy laws in some jurisdictions with only the latter being legal. In a traditional surrogacy arrangement, the surrogate uses her own egg, whereas in a gestational surrogacy arrangement, the surrogate is not biologically related to the child she is carrying. There are more risks with traditional surrogacy, and this is the main reason it is banned in some jurisdictions.

Surrogacy remains unregulated in several jurisdictions such as Ireland, Kenya, and Poland where there are no regulations or laws pertaining to surrogacy.

In the next part of this blog series, I will take a closer look at commercial surrogacy in a few jurisdictions, including the Ukraine, California, and New York. I will answer questions such as: What are the ethical issues raised by this arrangement? Why has Canada not legalized commercial surrogacy? How much can a surrogate get paid? Are we likely to see increased commercialization of surrogacy in the years to come?

If you are considering surrogacy or using a surrogate, give the fertility lawyers at Crossroads Law a call to set up your free consultation. They are well versed in surrogacy laws and are committed to guiding you through the legal issues.

The information contained in this blog is not legal advice and should not be construed as legal advice on any subject. The information provided in this blog is for informational purposes only.