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.