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    What is Surrogacy and what are the International Laws around Surrogacy?

    • 4.7   (5 Votes)
    Medically Reviewed by Dr. Deepika Tiwari - MS, MBBS on 06 Apr 2019 - Written by Dr. Sarita Sabharwal - MD, MBBS - Grammatically Approved by Dr. Kavita Jaggi Agrawal - MS, MBBS

    Some of the legal aspects of surrogacy include that authority at the national and state level should be constituted to register and regulate the I.V.F. clinics and A.R.T centers. Australia, Canada, India and Greece allow altruistic surrogacy while some states in U.S.A explicitly ban surrogacy.

    Surrogacy is an exciting process, and once a surrogate and intended parents have found each other, both parties are usually eager to start their surrogacy journey. But before jumping into the procedures, there are some very important legal factors to take into consideration. The legal process of surrogacy includes the surrogacy contract, the pre-birth order, and, in some cases, adoption or other post-birth legal procedures. Below, find an outline of international laws on surrogacy.

    In this article, we will look at:

    1. What are the legal aspects of surrogacy?
    2. What are the international surrogacy laws?

    1. What Are the Legal Aspects of Surrogacy?

    Both the intended parent and surrogate mother need to enter into a surrogacy agreement covering all issues, which would be legally enforceable. Some of the legal aspects of surrogacy in countries like India includes that authority at national and state level should be constituted to register and regulate the I.V.F. Clinics and A.R.T centers and a forum should be created to file complaints about grievances against clinics and ART centers. The age of the surrogate mother should be between 21-35 years, and she should not have delivered more than 5 times including her own children. Surrogates would not be allowed to undergo embryo transfer more than 3 times for the same couple. If she is a married woman, the consent of her spouse would be required before she may act as a surrogate to prevent any legal or marital dispute. She should be screened for STD, communicable diseases and should not have received a blood transfusion in the last 6 month as these may have an adverse bearing on the pregnancy outcome.

    The cost of surrogacy including insurance, medical bill and other reasonable expenses related to pregnancy and childbirth should be borne by intended parents. A surrogacy contract should include life insurance cover for the surrogate and she may also receive monetary compensation from the couple or individual as the case may be for agreeing to act as such surrogate. It is felt that to save poor surrogate mothers from exploitation, banks should directly deal with surrogate mother and minimal remuneration to be paid to the surrogate mother should be fixed by law. The surrogacy arrangement should also provide for financial support for the surrogate child in case the commissioning couple dies before delivery of the child, or divorce between the intended parents and willingness of none to take delivery of the child so as to avoid injustice to the child. A surrogate should not have any parental rights over the child, and the birth certificate of the baby should bear the names of intended parents as parents in order to avoid any legal complications. Guidelines dealing with the legitimacy of the child born through ART state that the child shall be presumed to be the legitimate child of the married or unmarried couple or a single parent with all the attendant rights of parentage, support, and inheritance. (1) 

    What Are the Legal Aspects of Surrogacy

    2. What Are the International Surrogacy Laws?


    In Australia, all jurisdictions (except the Northern Territory) allow altruistic surrogacy while commercial surrogacy being a criminal offense. In many parts of Australia, it is an offense to enter into international commercial surrogacy arrangements with potential penalties extending from one to three years of imprisonment. Altruistic surrogacy has been legal in Australia since 2004. Initially, couples who used to make surrogacy arrangements in Australia were allowed to adopt the child only after the child has been registered as born to the natural mother rather than being recognized as birth parents. However now that surrogacy is practiced more regularly for childless parents, most states have switched to such arrangements to give the intended parents proper rights. 


    The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy in Canada. Surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is considered illegal. Quebec law, however, does not recognize surrogacy arrangements, whether altruistic or commercial. (2)


    There are no clear rules and regulations regarding surrogacy. The legal and ethical dilemma of surrogacy involves two positions in Canada, the first is the majority’s, which takes into consideration the evaluation criteria that have impregnated the law and makes it difficult to go against the constitutional and legal tradition. As a result, it is understood that the embryo is a human being that enjoys special protection and should not be manipulated. The second is a more liberal position that advocates for individual freedom, the free development of personality, the freedom to constitute an own family and the rights to procreation. (3)


    Since 2002, altruistic surrogacy is legal in Greece after special permission of the court. Three years after the regulation of surrogacy law called Enforcement of Medically Assisted Reproduction was introduced. The new law regulates assisted reproduction and surrogacy in more detail. However, the more important articles for surrogacy are article 13 and 26. According to these two laws surrogacy is only permitted after a judicial decision issued by the district court where the surrogate mother and the commissioning parents reside. The insemination procedure can only take place after the commissioning mother applies to the court and after the publication of the judicial decision. (4)

    Once an agreement is made between the surrogate and the intended parents, the agreement could allow for compensation of expenses (including loss of wages), but the payment for services any kind of financial benefit is generally prohibited. Contracts are recognized, and parental rights are awarded to the intended parents. (5)


    The Surrogacy (Regulation) Bill, 2016 was passed in (India Lok Sabha) with a voice vote amid several adjournments over other issues. The bill ensures regulation of surrogacy in India, prohibiting all forms of commercial surrogacy. Only altruistic surrogacy is allowed to Indian married couple who cannot bear children. The bill states that the surrogate mother and the intended parents who want to have her child must be close relatives. The surrogate mother and the intending parents need eligibility certificates from the appropriate authority. The surrogacy bill allows only Indian citizens to avail of surrogacy. Foreigners, non-resident Indians (NRIs) and persons of Indian origin are banned from seeking surrogate mothers in India. Single parents, homosexuals and live-in couples are also not allowed to have children via surrogacy in India. Couples that already have children will not be allowed to go for surrogacy, though they are free to adopt children under a separate law. (6)


    Russia is one of the few countries where gestational surrogacy is absolutely legal. However, to practice surrogacy there has to be certain medical indication like somatic diseases contraindicating child bearing or repeatedly failed IVF attempts. The Family Code of Russia regulates surrogacy in Russia. Married couples who have given their consent in written form to the implantation of an embryo in another woman for the purpose of bearing may be entered as parents of the child only with the consent of the surrogate mother. Apart from that consent neither court decision nor adoption is required. The surrogate mother name is never listed on the birth certificate. After the entry of parents in the book of birth registrations made normally 3 5 days after the birth, the surrogate irrevocably loses all rights to the child. There is no requirement for the child to be genetically related to at least one of the commissioning parents as in Ukraine or in the UK. If there is any clause obliging the surrogate to give the child to intended parents, it is unenforceable.  In theory, a surrogate can abort the pregnancy and even keep the child, though no such cases have ever been registered. (7)

    South Africa

    Surrogate motherhood is currently regulated in South Africa following the promulgation of chapter 19 of the Children’s Act on 1 April 2010. Prior to this, altruistic surrogacy arrangements were subject to legislation, contract law and regulations pertaining to artificial insemination, with the status of the child born as a result of such an arrangement determined by the now repealed Children’s Status Act. The act contains specific requirements associated with the contents of surrogate motherhood agreements. These agreements must be in writing and confirmed by the High Court. A written contract between a surrogate mother and intended parents will be invalid if not confirmed by the High Court. No agreement will be confirmed by the High Court if the partner or spouse of the surrogate mother, as well as the partner or spouse of the commissioning parent, is not a party to the agreement and has not provided their consent to the arrangement in writing. The court must confirm a surrogate agreement before the surrogate mother is artificially inseminated. A court may also not confirm the agreement if the agreement does not make adequate provision for the care, contact, upbringing or general welfare of the child. The interests of the child to be born as a result of an agreement are of paramount importance, and regard must be taken of the personal circumstances and family situations of all the relevant parties. A court will not confirm a surrogate motherhood agreement unless the intended parent(s) are unable to give birth to a child and this condition must be permanent and irreversible. (8)

    United States

    U.S.A has responded to the policy issue of surrogacy in very different ways. Some states allow surrogacy while other states leave surrogacy partially or fully unaddressed and some expressly prohibit surrogacy altogether. Despite the varying degree of inconsistency across the U.S. most states are moving towards regulation and away from prohibition. New York is one of only four U.S. states that bans surrogacy entirely. Key issues of surrogacy include the risk of a child becoming stateless, the right of a child to know their ancestry, and Surrogacy Law and Policy in the U.S. Currently; four states explicitly ban surrogacy New York, New Jersey, Michigan and Indiana. In New York, Indiana and Michigan surrogacy contracts are void and unenforceable. In California, there is a law explicitly regulating and allowing full surrogacy contracts only. California also allows compensation for the surrogate mother and the law does not clarify whether there is a reasonableness limitation on the amount that can be paid. California has no restrictions on who can be the intended parent or a surrogate and the law does not impose residency requirement on either intended parents or surrogates. (9)

    Hope this article has provided you with all the relevant information you were looking for. Follow Elawoman blog for more information. Starting a family is one of the biggest decisions you make in life but having a baby is not always easy. Elawoman we have been creating miracles every day. Ela can help you connect with some of the best gynecologists in India who can work closely with you to develop a personalized fertility treatment plan for IVF, ICSI, IUI, PGD, egg donation & surrogacy and other fertility options. Call Elawoman today to help you through this journey. Reach us at +917899912611

    Dr. Sarita Sabharwal

    Written by

    MD, MBBS

    Dr. Sarita Sabharwal is working as an Obstetrician and Gynecologist at Venkateshwar Hospital. She has completed MBBS from Gandhi Medical College, Bhopal in 1983 and MD in Obstetrics and Gynecology from Gandhi Medical College, Bhopal in 1988. Dr. Sarita Sabharwal has expertise in performing all types of Gynecological surgeries including Laparoscopic and Hysteroscopy procedures, Vaginal surgeries, Open surgeries especially Hysterectomy. She has vast experience in managing all High risk pregnancies and doing all Obstetric surgeries. Her Special interest areas include Infertility, Family Planning. She has teaching  and training experience. She is the personal favorite of her patients not just for the skilled doctor she is, but also for her amazing personality. Her commitment to excellence is focused on the needs of each woman throughout all stages of life. Dr. Sarita Sabharwal works hard as a gynaecologist and believes in providing help to as many patients as she could. She likes to attend various conferences held at different cities so she could impart her knowledge about gynaecology. She believes that, by attending workshops conducted by various institutions, she could enhance her understanding of a patient's mind-set which would eventually help her treat the patient better.





    Nandish Acharya

    Choosing a good surrogate that matches your criteria is the assurance of a successful treatment. You should meet the surrogate personally and talk to her before saying yes for the treatment.

    Nov. 2, 2018, 5:05 a.m. 4.5


    Rashmita Phule

    I would say that surrogacy is a sure success treatment, as it proved to be in my case. Although the treatment is expensive it is also the last option if you have past failures in other treatments.

    Oct. 8, 2018, 6:29 p.m. 4.5


    Naveen Kaushik

    There are many laws and legal work associated with surrogacy. Everyone should be clear of that, as it is done so that the surrogate can not claim any right over the child later.

    Sept. 24, 2018, 2:56 p.m. 5.0


    Karishma Dhankhad

    Totally a new concept for someone like me. I had heard about surrogacy but this blog cleared all my concepts.

    June 5, 2018, 10:45 a.m. 5.0


    Nisar Hasan

    Surrogacy procedure helped me become a mother after a lot of struggles.

    May 9, 2018, 6:05 p.m. 4.5

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