Edited by Jürgen Basedow, Giesela Rühl, Franco Ferrari and Pedro de Miguel Asensio
Chapter S.16: Surrogacy
I. Concept and kinds
Surrogacy is a practice to which couples resort when the female partner is unable to carry a baby, or when gay couples and single men aim to be parents on their own. These commissioning couples or single parents (the intended parents) reach an arrangement with a woman (the surrogate mother) who will get pregnant and will hand over the baby to the intended parents once she gives birth, renouncing parental rights to the child.
Heterosexual couples may resort to surrogacy in order to have biologically linked (to both) children, when the female partner only suffers from uterine infertility. By means of assisted reproductive technology (henceforth ART), an embryo is created from the female eggs fertilized with the semen of the male partner, either naturally, through artificial insemination, or in vitro. The embryo is then transferred to the womb of the surrogate mother. The surrogate mother does not share biological links with the baby. She just agrees to a sort of ‘womb renting’. This practice is known as gestational surrogacy. In the other cases, ie when the woman is wholly infertile or when there is no intended mother, the male partner of the heterosexual couple, or the single intended father, or any of the intended parents if they are both males, provides his gametes for the fertilization of a female donor’s eggs. This donor can be a woman different to the carrier (again, gestational surrogacy), but the surrogate mother herself can also supply the genetic material (genetic surrogacy or surrogate motherhood). In all these situations, the employment of the genetic material of the intended father (or one of them, in case they are a couple) makes it possible to have biologically related (to the male or one of the males) offspring. The surrogate mother may act on a profit basis (commercial surrogacy), or just on grounds of sympathy or compassion for a friend or familiar (altruistic surrogacy).
Human ART techniques are sometimes also used by same-sex female marriages or partnerships, in which one of the women gets pregnant and gives birth to a baby who is genetically linked to the other woman and a male donor. But, as in these cases the carrier (surrogate mother) coincides with (one of) the intended mothers, there is no surrogacy practice properly speaking.
p. 1692Surrogate parenting is not a recent phenomenon (a reference can be found in the Bible, Genesis 30:1–30:3), but it has extensively expanded since the late 1970s. Diverse factors have triggered the growth, such as the development of human ART, the ease of international travel and the worldwide dissemination and availability of information, essentially by means of the Internet. These elements, together with the diversity of the state legal approaches to the practice, have amounted to the emergence of an ‘international surrogacy market’. Informed intended parents cross borders in order to have their offspring for economic or legal reasons: sometimes just because the surrogacy process is easier, quicker or cheaper abroad, others because the practice is unknown or illegal in their country of origin or residence or for the reason that the intended parents do not meet the legal requirements of the law of this country.
The employment of the term ‘market’ gives a hint of the ethical objections that surrogacy, especially commercial genetic surrogacy, raises. The fear of a commodification of children and the deterrence of women’s exploitation are the main reasons for some countries to ban surrogate motherhood. On the other hand, some countries have approved specific legislation, in whose promulgation, in many cases, underlies the basic idea that it is preferable to regulate the practice than to adopt absolute prohibitions. The prevalent concern here is to avoid the rising of black markets where women could be even more exploited. But there are also jurisdictions where the debate has been clearly settled in favour of the ethical admissibility of the practice, and where, therefore, specific rules have already been enacted or announced.
Indeed, the international map of surrogacy shows no territorial, cultural or legal patterns: a (non-exhaustive) picture of the situation illustrates that, at this moment, surrogacy is regulated by means of either specific rules, a legislative framework setting standards or case-law, in countries of Europe (→Greece and the →United Kingdom), Africa (→South Africa), America (the states of Texas, Utah, Virginia, Florida, Illinois, Massachusetts, Nevada, Washington, New Hampshire, Ohio and California in the USA; the Mexican state of Tabasco), Oceania (→Australia and →New Zealand) and Asia (→Israel, →Ukraine and Russia (→Russian Federation)). The practice takes place legally, although on an unregulated basis, in other countries, such as →India, →Thailand or Uganda. Among the countries where the practice is neither expressly banned nor expressly permitted are →Belgium, →Finland, the →Netherlands, →Spain, →Japan, Guatemala and →Argentina. Finally, other countries such as →Germany, →France, →China, and the states of New York and Michigan have an express ban against the practice in all its forms. Nevertheless, this picture is changing, especially because the number of jurisdictions with a surrogacy-friendly approach is growing.
Where surrogacy is either regulated or just practised on an unregulated basis, the surrogate mother is not regarded as the legal mother of the child(ren). The intended parents will be considered the legal parents, either ex lege or by means of the decision of a judicial or administrative authority. For this reason, where a surrogacy-friendly legislation has no requirements as to the nationality or residence of the intended parents (and it often happens in states where commercial surrogacy is allowed), foreign nationals or residents come from abroad. They come to an agreement on the practice and have their children, and they also achieve the legal recognition of their parent–child relationship pursued. Afterwards they seek recognition of the relationship also in their country of origin, even if the practice is banned in that country. This lack of a voluntary acceptance of the consequences of their acts is a clear sign of the fact that their behaviour cannot be qualified as civil disobedience. Surrogate motherhood is rather the object of a flourishing new sort of legal tourism: procreative tourism.
II. State regulations on surrogacy in jurisdictions favourable to the practice
1. Substantive regulation
There are many different and complex issues to tackle when elaborating specific rules on surrogacy. The existing statutes are far from being homogeneous, both as to the matters that are expressly regulated and the way in which they are envisaged. Nevertheless, in the majority of cases, a special attention is paid to the kinds of surrogacy permitted, the agents involved in the process, the surrogacy agreement, the rights of the child(ren) and the administrative and/or penal consequences of the violation of the legal conditions.
a) p. 1693Kinds of surrogacy
First of all, it is necessary to define the types of surrogacy allowed. As said before, surrogacy can be performed by the surrogate mother with either altruistic or commercial purposes. Where state laws just allow altruistic surrogacy (it is the case in the vast majority of countries), no payment can be made to the surrogate mother, beyond the reimbursement of the reasonable expenses related to pregnancy and birth. Where commercial surrogacy is allowed, an additional compensation is given to the surrogate mother. Another relevant issue to regulate is whether surrogacy is subject to pre-approval or to an a posteriori assessment. In the first case, the relevant (administrative or judicial) authority has to declare before the birth of the child(ren) takes place that the intended parents will be considered the legal parents once the children are born, if the legal requirements are met. In the second case, the practice is subject to control ex post facto, ie, after the birth of the children, upon request to the relevant authority of the recognition of the legal parentage.
b) Agents involved
A high number and variety of agents may be involved in the practice, besides the surrogate mother and the intended parents, such as agencies or mediators, public (administrative and judicial) authorities, medical staff and legal advisors. The intervention in the process of these agents is often addressed by the state regulations.
Thus, administrative bodies might be established in order to monitor the process and assess the accomplishment of the legal requirements. These bodies, when settled, are sometimes also entrusted with the task of approving the surrogate agreement. However, the control of the whole process might be finally performed by judicial authorities, whose positive decision will be required for the establishment of legal links between the child(ren) and the intended parents. As said before, this decision is sometimes made prior to the birth; in other occasions, once the birth has taken place, within a given time.
If it is always advisable for the intended parents and surrogate mother to seek legal advice, the existence of a previous counsel might be settled as a legal requirement. Indeed, an attorney ‘letter of compliance’ with the provisions of the surrogacy law is one of the documents that is requested, according to some regulations, by the administrative body or the court entrusted with the approval of the process.
Clinics or hospitals also intervene in the vast majority of the processes, as the employment of human ART is not only commonly necessary, but sometimes also legally compulsory. They facilitate the pregnancy, and sometimes they carry out the psychological and medical evaluations of the surrogate mother and of the intended parents that the legal regulations require. Regulations often establish special requirements for the intervening clinics or hospitals, such as being public or certified; in some cases, the clinics need to have a special licence which specifies issues such as the activities covered by the licence, the premises in which the activities may be performed and the name of the responsible person.
Finally, in the countries where commercial surrogacy is allowed, it is habitual that commercial agencies are involved in the process. In these cases, specific administrative requirements may also be imposed by state regulations to the agencies through which the intended parents meet the surrogate mother. These agencies usually also help with the development of the whole process, by means of providing advice and facilitating the contacts with the rest of the agents (lawyers, clinics, courts etc). Where surrogacy is permitted and regulated, but only on a non-commercial basis, as the practice is to be kept ‘within the family’, restraints are usually imposed on commercial agencies and advertising surrogacy services.
c) The surrogacy agreement
A paramount element in the surrogacy process is the agreement between the intended parents and the surrogate mother. Regulations usually address the conditions for the agreement to be valid and enforceable.
First, the special object of the agreement makes it necessary to add requirements to the ordinary legal capacity of the parties (→Capacity and emancipation). Further subjective conditions are established relating both parties to the agreement. As regards the intended parents, the requirements usually concern their maximum and minimum age, civil status (married or unmarried couples, singles), sex (open to same-sex couples or limited to opposite-sex couples) and psychological ability. There is an overwhelming trend relating to them: that a genetic link between at least one of the intended parents and the child(ren) is required. For the p. 1694intended mother it is usually also required that she is unable to carry a pregnancy. As regards the surrogate mother, the conditions relate to her maximum and minimum age, her civil status (and the necessity of her husband’s consent, in case she is married), the number of previous living children required (if any), the maximum number of previous surrogate practices (successfully or unsuccessfully) accomplished, and her psychological and medical condition. It is also usual that the rules on surrogacy clarify if biological links between the surrogate mother and the baby are either required or allowed (ie genetic surrogacy is permitted), or banned (just gestational surrogacy being tolerated). And other additional requirements regarding the surrogate mother and the intended mother are sometimes established, so that they have to be close relatives (ie the surrogate mother has to be the mother, sister or daughter of the intended mother), or they are required to practise the same religion.
As regards formal requirements, the agreement is usually deemed to be in writing, so as to gain certainty regarding a paramount element of the process: consent of the surrogate mother and the intended parents. As said before, another formal requirement of validity of the agreement might be its confirmation by the competent administrative body or court, usually before the surrogate mother is artificially inseminated.
The main obligation of the intended parents towards the surrogate mother is the reimbursement of the expenses which she may have directly incurred (medical insurance and fees, medicines, compensation for labour leave, maintenance during pregnancy, transport, special clothes and diet) and, in commercial surrogacy, if allowed, the extra amount agreed. Moreover, the intended parents also assume the rest of the expenses of the whole process: medical and psychological reports and intervention, legal counselling, the commissioning agency, insurance, travel, judicial or administrative fees etc. The surrogate mother’s main obligation is to bring the pregnancy to its end, hand over the child(ren) to the intended parents and renounce her parental rights. Other usual provisions include the event of a divorce (→Divorce and personal separation) or death of the intended parents; the contact, care, upbringing and general welfare of the child (including the future contacts between the child and the surrogate parents); termination of pregnancy (possible causes, and compensations due in case the pregnancy is disrupted, depending on the reasons and deciding party); and enforceability or unenforceability of the agreement, ie possibility of the surrogate mother changing her mind and refusing to surrender the child at birth, or possibility of the intended parents rejecting the newborn, because she or he is born with unexpected handicaps. Although being a private agreement, the parties are not entirely free to agree on all these terms: state surrogacy regulations contain many mandatory rules. Besides, the best interests of the child will always prevail over provisions that do not conform to this principle.
As regards the rights of the child, the most relevant issue that surrogacy regulations have to envisage relates to her or his right to information about her or his parentage, ie the possible anonymity of the surrogate mother and/or donor, and the access rights of the child to medical information concerning his or her genetic parents.
d) Administrative and/or penal sanctionsA complete regulation on surrogacy also envisages the administrative or penal sanctions for violation of the settled legal conditions. Such sanctions concern the possible infringement of the duties of any of the agents involved, but often also penalize advertising for surrogacy, which is an activity usually banned or subject to limitations. This activity is usually only allowed in the jurisdictions where commercial surrogacy is legally possible.
2. Private international law rules
Most of the existing statutes on surrogacy set a single provision dealing with transnational situations, which aims at preventing limping relationships. The rule addresses choice-of-law issues: there are neither specific rules on jurisdiction, nor on recognition and enforcement of judgments. According to the rule mentioned, in order to legally accomplish the practice, the intended parents and/or the surrogate mother must have a given connexion with the forum: →nationality, habitual residence or domicile (sometimes of a given length prior to filling the application). This requirement might nevertheless sometimes be legally relaxed if that is consistent with the child’s best interest.
Another general feature is the lack of specific choice-of-law rules applicable to surrogacy. A factual unilateral approach as to the law applicable to the whole process is adopted, according to which the law of the forum is applied to all the above-mentioned issues.
III. p. 1695State regulations on surrogacy in countries contrary to the practice: legal implications of reproductive tourism
As said before, there are countries where the practice is not allowed and in principle the legal consequences sought by the persons involved may not be achieved. Among them, some lack an express ban on the matter but, either expressly or under general law principles, consider the surrogate agreement void and unenforceable and with no effects on parentage. Thus, the parturient is always the mother of the child(ren), notwithstanding the fact that she could not be the genetic mother (in gestational surrogacy). Therefore, as regards the practice, these countries just reaffirm the principle mater semper certa est. Other jurisdictions have a clearer anti-surrogacy approach, as they expressly criminalize participation in and/or brokering of a surrogacy agreement.
Most of these countries, however, face requests for the recognition of the parent–child relationship established under foreign law or by foreign authorities, with regard to children born as a result of a surrogacy agreement. Such requests are usually addressed to the national consular authorities, to which the intended parents apply for a passport or travel document for the child(ren) to come back home. In other instances, they are addressed to the authorities competent for the recognition of the relationship (civil registers, courts), once the family has already returned to their place of residence.
So far, two different kinds of solutions have been given to these requests. On the one hand, there are countries where the relevant private international law rules of the forum are applied. This first solution usually leads to the denial of recognition of the legal parentage as established abroad – especially of the intended mother’s legal link with the child(ren) – on grounds of the violation of the public policy of the forum. But, in order to attend the best interests of the child(ren), it is also habitual to establish some remedies, such as to accord the recognition of the biological links with the intended father who provided the genetic material, and allow the other intended father or mother to adopt the child(ren).
On the other hand, other countries apply the substantive →lex fri, even extraterritorially, to the issue of parentage. Thus, denial of the legal parentage as established in the foreign country is also habitual according to this second solution, except where the requested country allows for an ex post facto assessed surrogacy: in this case, the requested authorities could give effect to the surrogacy agreement if it meets the requirements laid down by the lex fori. But again here, where the surrogacy agreement has in principle no effects in the requested jurisdiction, domestic →adoption procedures are often available, so that at the end it is feasible to avoid that the limping relationship leads to the denial of any right to the child and the intended parents in the requested country. Nevertheless, as far as countries parties to the ECHR are concerned, the national solutions could soon evolve, in accordance with the most recent case-law of the ECtHR (see infra).
IV. International and EU instruments
So far, the only international conventions that deal with matters related to surrogacy are instruments on assisted reproduction and biomedicine, such as the Council of Europe’s Convention on Human Rights and Biomedicine, adopted by the Committee of Ministers on 19 November 1996 and opened for signature on 4 April 1997 (Oviedo Convention, available at <http://conventions.coe.int/Treaty/en/Treaties/html/164.htm>). This Convention regulates issues such as equitable access to health, guarantee of the professional obligations and standards in health interventions, free and informed consent by any person prior to a medical intervention, prohibitions on sex selection and human genome modification (unless for therapeutic reasons), ban on embryo creation for research purposes and prohibition on the use of the human body and its parts for financial gain. But there is no specific regulation on the matter. Nevertheless, in light of the transnational problems arising as a result of international surrogacy agreements, the Permanent Bureau of the Hague Conference on Private International Law is currently studying the private international law issues being encountered in relation to international surrogacy arrangements.
As regards EU law, it is worth mentioning that surrogacy is still not contemplated in EU legislation of any kind. And it is an unknown phenomenon also with regard to the EU Directives that regulate labour rights derived from motherhood, such as the Council Directive 92/85/EEC of 19 October 1992 on the introduction of measures to encourage improvements in the safety and health at work of pregnant workers p. 1696and workers who have recently given birth or are breastfeeding ( OJ L 348/1), the Directive 2006/54/EC of the European Parliament and of the Council of 5 July 2006 on the implementation of the principle of equal opportunities and equal treatment of men and women in matters of employment and occupation ( OJ L 204/23) and Council Directive 2000/78/EC of 27 November 2000 establishing a general framework for equal treatment in employment and occupation ( OJ L 303/16). Indeed, the ECJ, in its judgments of 18 March 2014 (Case C-167/12 CD v ST  OJ C 194/9; Case C-363/12 Z v A Government department, The Board of management of a community school  OJ C 142/7) has denied the possibility of considering that any of these Directives oblige the Member States to equate an intended mother to the woman who has been pregnant and given birth for purposes of granting paid leave equivalent to maternity leave or adoptive leave.
Finally, it is also important to draw attention to the fact that the ECtHR condemned France, by means of its judgment of 26 June 2014, Mennesson v France (App No 65192/11), to compensate the moral prejudice caused to two twins, daughters of a French couple (the Mennesson), which resorted to gestational surrogacy in California, for violation of art 8 ECHR. The ECtHR has considered that the effects of non-recognition in French law of the parentage between the children born following surrogacy treatment abroad and the couples who had the treatment, not only raised a serious question of compatibility with the best interests of children, respect for which must guide all decisions affecting them, but also entailed serious consequences on the identity of the children. Therefore the ECtHR concluded that the children’s right to respect for their private life had been infringed as a consequence of the non-recognition under French law of the legal parent–child relationship established in the USA. A similar result was also reached by the ECtHR in its judgment of 26 June 2014, Labassee v France (App no 65941/11).
Sonya Bychkov Green, ‘Interstate Intercourse: How Modern Reproductive Technologies Challenge the Traditional Realm of Conflicts of Laws’, Selected Works of Berkeley Electronic Press: <http://works.bepress.com/sonia_green/1/>;
Cristina Campiglio, ‘Lo stato di figlio nato da contratto internazionale di maternità’  Riv.Dir.Int’le Priv. & Proc. 589;
Rachel Cook and Shelly Day Sclater with Felicity Kaganas (eds), Surrogate Motherhood: International Perspectives (Hart Publishing 2003);
J Flauss-Diem, ‘Maternité de substitution et transfert de parenté en Angleterre’  R.I.D.C. 855;
Guido Pennings, ‘Reproductive Tourism as Moral Pluralism in Motion’  28 Journal of Medical Ethics 337;
Katarina Trimmings and Paul Beaumont (eds), International Surrogacy Arrangements: Legal Regulation at the International Level (Hart Publishing 2013).