The main countries that permit altruistic surrogacy include Australia, Canada (save for Quebec, where all surrogacy contracts are unenforceable), Georgia, Greece, New Zealand and the United Kingdom. In those countries commercial surrogacy is illegal. The popular destination for altruistic and commercial surrogacy is the United States, although it is not accepted in every state. The states that permit commercial surrogacy include California, Illinois, Arkansas, Maryland and New Hampshire.
The countries that do not permit either commercial or altruistic surrogacy include: Finland, France, Hong Kong, Hungary, Iceland, Italy and Pakistan. The laws in each country can change very quickly, so keeping abreast of developments is crucial.
The most well-established state in the United States for commercial surrogacy is California. California is known as the ‘golden state for surrogacy’ due to its popularity for commercial surrogacy arrangements. The laws in California make it possible for the commissioning parents to a surrogacy arrangement, regardless of marital status and/or sexual orientation, to establish legal parental rights prior to the birth of the child and without the need to go through the legal process for adoption.
However, California has only become well-established as a result of a number of cases which led to the legal reforms. In the case of Johnson v Calvert , the surrogate opposed the commissioning parents’ application for a declaration they were the natural parents of the child, with the court finding against the surrogate. In the case of US v Erickson , an attorney pleaded guilty to ‘conspiracy to commit fraud’ and she admitted that she and her co-conspirators had used gestational carriers to create an inventory of unborn babies that they would sell for over $100,000.
When interpreting a USA surrogacy arrangement and deciding whether that arrangement should result in the making of a Parental Order, English courts will take into account all the factors set out in s.54 of Human Fertilisation and Embryology Act 2008 and determine if they are satisfied and whether the child’s lifelong welfare requires such an order to be made. The judge will have the benefit of the Parental Order Reporter and their report when considering whether the making of such an order would be beneficial for the child’s lifelong welfare.
Before embarking on this wonderful journey of surrogacy, the obtaining of legal advice is vital to ensure that steps are in place to achieve the Parental Order. For more information, or a preliminary, confidential discussion contact our Fertility expert Anne-Marie Hamer.