Surrogacy

Ethical, Social and Legal Issues

It is important to note that surrogacy raises many complex ethical, social and legal issues.

Being aware of the many issues raised by surrogacy is most relevant when considering both what the law is, and whether or not it should change (i.e. what it should be).

It is also of primary importance to anyone considering entering into such arrangements.

Note, surrogacy arrangements may involve numerous parties. Depending on the law, there may be from two parties (the surrogate mother and a single commissioning person) up to eight parties involved (the surrogate mother and her partner, a commissioning couple, donors of ova and sperm and their partners).

In addition, there may be agents, intermediaries, lawyers and clinics: all of whom stand to gain financially.

It is in such a context that issues have been raised.

 

Some legal (ethical and social) issues raised by surrogacy:

  • What types of surrogacy arrangements are legal? For example many countries allow altruistic surrogacy, but prohibit commercial surrogacy; some countries prohibit all surrogacy arrangements;  few countries permit commercial arrangements.
  • When surrogacy arrangements are legal, does (and/or should) the law impose eligibility criteria for a surrogate mother, her partner (if any) and the commissioning parents? For example, are people screened for criminal records, health, psychological state? Are there requirements for independent legal advice, counselling? Does the surrogate mother have to have had children before, or be of a certain age?
  • Are there protections for the surrogate mother if she wishes to change her mind? This is often a question in law of whether the agreement is ‘enforceable’: for example, an altruistic agreement may be legal (permitted), but not enforceable, which would allow the surrogate mother to keep the child if during her pregnancy or at birth, she did not want to relinquish the child.
  • Are there protections for children who are conceived as a result of such arrangements? For example, what happens if the commissioning person(s) change their mind? What screening takes place of commissioning persons? What access will the child have to information?
  • What protections are there for surrogate mothers? For example, what laws or regulation (if any) are there in relation to forced caesarians; ‘foetal reduction’ (requiring her to have an abortion if there are multiple babies, or abnormality is detected); freedoms during pregnancy; health care before, during and after pregnancy?
  • In what circumstances is transfer of legal parentage acceptable? How does the law provide for transfer of legal parentage?
  • Does the law provide for access by the child to information about the surrogate mother and/or the child’s genetic heritage?
  • Does the law provide for access by the surrogate mother to information about the child?
  • What rights do other children have to have information about the child (for instance when the surrogate already has other children)?
  • Should any form of payment or reward be made to a surrogate mother? What issues can or do arise in relation to exploitation, commodification, trafficking of women and children? (Note, due to these issues, the majority of countries that regulate surrogacy do not permit commercial surrogacy).
  • How are women ‘recruited’ to serve as surrogate mothers? Is commercial advertising legal? What other modes of recruitment are or are not permissible?
  • What role do intermediaries, agents, lawyers and clinics play in altruistic and commercial surrogacy arrangements? Should there be regulation concerning their practices, and their profits?

How has the law answered the above questions?

In Australia

Australia
Each jurisdiction in Australia has moved toward ‘answering’ the legal questions posed above, in various ways.

The laws differ across states and territories, and should be considered separately. (Note again that it is the nature of Australia’s legal system that each state and territory makes its own laws in relation to health)

There are separate pages on this site that give an overview of surrogacy laws in each state and territory of Australia, which may be linked to via the menu on the right of this page (and below).

Very broadly however, altruistic surrogacy arrangements are permitted with reimbursement of ‘reasonable expenses’ in all states and territories of Australia.

Surrogate mothers, and commissioning persons, must meet certain requirements before they can enter into an agreement.

Note, in all states and territories although altruistic agreements are legal, they are not enforceable. The birth mother (the surrogate mother) is considered to be the legal mother of the child, regardless of who provided the eggs and/or sperm. The law recognises her right to change her mind at any point during the pregnancy and for a certain period of time after the birth.

Commercial surrogacy arrangements are explicitly prohibited in all states and territories, except the Northern Territory.

NOTE: This does not mean however that commercial surrogacy may occur in the Northern Territory, as there are restrictions resulting from other laws, guidelines and practice.The National Health and Medical Research Council, Ethical Guidelines on the Use of Assisted Reproduction in Clinical Practice and Research also state that commercial surrogacy is ethically unacceptable to undertake or facilitate.There are restrictions in most states and territories on advertising for, facilitating or arranging, surrogacy agreements.

Around the Globe

On a global level different approaches to the regulation of surrogacy may be seen. These include:

 

1) Prohibition of all surrogacy arrangements

Some countries prohibit all surrogacy arrangements. For example, this approach is taken in China (mainland), France, Germany, Italy, Mexico (Queretaro), Sweden, Switzerland, and some jurisdictions within the United States of America (e.g., Arizona, District of Columbia).

 

2) ‘Altruistic’ surrogacy permitted and regulated; all forms of commercial arrangements are prohibited

The overwhelming trend across countries and states that regulate surrogacy is to permit only altruistic surrogacy arrangements; and to provide criminal sanctions regarding commercial surrogacy.In countries that allow ‘reimbursement of expenses’ related to altruistic arrangements, there is a strong trend to permit only surrogacy arrangements where at least one commissioning person(s) is genetically related to the child. In some states only gestational surrogacy is permitted.In several jurisdictions, women must meet certain criteria before being able to act in an altruistic surrogacy arrangement.

 

3) Surrogacy is permitted, including commercial surrogacy

A small number of countries and/or states permit all forms of surrogacy, including commercial surrogacy. Such countries/states include Georgia, India, Russia, Uganda, Ukraine, some Mexican States, and 18 states in the United States of America.The issues raised in relation to commercial surrogacy above, are particularly pertinent in these countries.

 

4) Surrogacy is largely unregulated

In some countries there are no laws on surrogacy, and it is therefore seen as ‘unregulated’.

However, when there is no legislation on the matter, most often a contractual obligation for a surrogate to surrender a child to commissioning person(s) is void and unenforceable. There will also be no legislated mechanism for transferring legal parentage.

In addition, while there may be no separate legislation on surrogacy in such jurisdictions, commercial surrogacy may nevertheless be banned (prohibited) either through express legal provision or general laws pertaining to, for example, child trafficking.

Many cultural beliefs and practices also come into play, and surrogacy may be prohibited as a consequence.

It is important to note therefore that it cannot be assumed that because a country lacks express laws on surrogacy, that it is possible or practiced.

On the other hand, there is concern that in some developing countries, due to a lack of specific regulation, women and children are more vulnerable to commercial exploitation and/or trafficking.

Find out more

You may find more detailed summaries of laws by following the links at the side of the page, or clicking on the state or territory below that you are interested in:

Girl hugging pregnant woman