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The fertilisation of the egg may take place in a number of ways, each of which has implications for the genetic relationship of the resulting child with the surrogate and the future parents. There are two main types of surrogacy: gestational surrogacy and traditional surrogacy. In the United States, gestational surrogacy is more common than traditional surrogacy and is considered less legally complex.
Traditional surrogacy (also known as partial, genetic, or straight surrogacy) involves natural or artificial insemination of a surrogate. If the intended father’s sperm is used in the insemination, then the resulting child is genetically related to the intended father and genetically related to the surrogate. If donor sperm is used, the resulting child is not genetically related to either intended parent but is genetically related to the surrogate. In some cases, an insemination may be performed privately by the parties without the intervention of a doctor or physician. In some jurisdictions, the ‘commissioning parents’ using donor sperms need to go through an adoption process in order to have legal rights in respect to the resulting child. Many fertility centers which provide for surrogacy assist the parties through the process.
Gestational surrogacy (also known as host or full surrogacy) was first achieved in April 1986. It takes place when an embryo created by in vitrofertilization (IVF) technology is implanted in a surrogate, sometimes called a gestational carrier. Gestational surrogacy may take a number of forms, but in each form the resulting child is genetically unrelated to the surrogate:the embryo is created using the intended father’s sperm and the intended mother’s eggs. The resulting child is genetically related to both intended parents.the embryo is created using the intended father’s sperm and a donor egg where the donor is not the surrogate. The resulting child is genetically related to the intended father.the embryo is created using the intended mother’s egg and donor sperm. The resulting child is genetically related to the intended mother.a donor embryo is implanted in a surrogate. Such an embryo may be available when others undergoing IVF have embryos left over, which they donate to others. The resulting child is genetically unrelated to the intended parent(s).
In places where surrogacy is legal, couples may enlist the help of a third party agency to oversee the process of finding a surrogate, entering into a contract with her and recommend fertility centers for insemination, generally via IVF. These agencies can help make sure that surrogates are screened with psychological evaluations and other medical tests so as to ensure the best chance of healthy deliveries. They also usually facilitate all legal matters concerning the two parties (intended parents and surrogate).HistoryHaving another woman bear a child for a couple to raise, usually with the male half of the couple as the genetic father, is referred to in antiquity. Babylonian law and custom allowed this practice, and an infertile woman could use the practice to avoid a divorce, which would otherwise be inevitable.
Many developments in medicine, social customs, and legal proceedings worldwide paved the way for modern surrogacy:
Surrogacy is controversial around the world, raising difficult moral, social and legal issues. As a result, the legal situation varies considerably. Many countries do not have laws which specifically deal with surrogacy. Some countries ban surrogacy outright, while others ban commercial surrogacy but allow altruistic surrogacy (in which the surrogate is not financially compensated). Some countries allow commercial surrogacy, with few restrictions. Some jurisdictions extend a ban on surrogacy to international surrogacy. In some jurisdictions rules applicable to adoptions apply and in others the practice is unregulated.As of 2013, places where a woman could legally be paid to carry another’s child through IVF and embryo transfer included India, Georgia, Russia, Thailand, Ukraine and a few U.S. states.
Laws dealing with surrogacy must deal with:enforceability of surrogacy agreements. In some jurisdictions, they are void or prohibited, and some jurisdictions distinguish between commercial and altruistic surrogacy.the different issues raised by traditional and gestational surrogacymechanisms for the legal recognition of the intended parents as the legal parents, either by pre-birth orders or by post-birth adoption.
Although laws differ widely from one jurisdiction to another, some generalizations are possible:The historical legal assumption has been that the woman giving birth to a child is that child’s legal mother, and the only way for another woman to be recognized as the mother is through adoption (usually requiring the birth mother’s formal abandonment of parental rights).Even in jurisdictions that do not recognize surrogacy arrangements, if the genetic parents and the birth mother proceed without any intervention from the government and have no changes of heart along the way, they will likely be able to achieve the effects of surrogacy by having the surrogate mother give birth and then give the child up for private adoption to the intended parents.If the jurisdiction specifically prohibits surrogacy, however, and authorities find out about the arrangement, there may be financial and legal consequences for the parties involved. One jurisdiction (Quebec) prevented the genetic mother’s adoption of the child even though that left the child with no legal mother.
Some jurisdictions specifically prohibit only commercial and not altruistic surrogacy. Even jurisdictions that do not prohibit surrogacy may rule that surrogacy contracts (commercial, altruistic, or both) are void. If the contract is either prohibited or void, then there is no recourse if one party to the agreement has a change of heart: if a surrogate changes her mind and decides to keep the child, the intended mother has no claim to the child even if it is her genetic offspring, and the couple cannot get back any money they may have paid or reimbursed to the surrogate; if the intended parents change their mind and do not want the child after all, the surrogate cannot get any reimbursement for expenses, or any promised payment, and she will be left with legal custody of the child.Jurisdictions that permit surrogacy sometimes offer a way for the intended mother, especially if she is also the genetic mother, to be recognized as the legal mother without going through the process of abandonment and adoption.
Often this is via a birth order in which a court rules on the legal parentage of a child. These orders usually require the consent of all parties involved, sometimes including even the husband of a married gestational surrogate. Most jurisdictions provide for only a post-birth order, often out of an unwillingness to force the surrogate mother to give up parental rights if she changes her mind after the birth.A few jurisdictions do provide for pre-birth orders, generally in only those cases when the surrogate mother is not genetically related to the expected child. Some jurisdictions impose other requirements in order to issue birth orders: for example, that the intended parents be heterosexual and married to one another. Jurisdictions that provide for pre-birth orders are also more likely to provide for some kind of enforcement of surrogacy contracts.
The citizenship and legal status of the children resulting from surrogacy arrangements can be problematic. The Hague Conference Permanent Bureau identified the question of citizenship of these children as a “pressing problem” in the Permanent Bureau 2014 Study (Hague Conference Permanent Bureau, 2014a: 84-94). According to U.S. Department of State, Bureau of Consular Affairs, for the child to be a U.S. citizen one or both of the child’s genetic parents must be a U.S. citizen. In other words, the only way for the child to acquire U.S. citizenship automatically at birth is if he/she is the biological son or daughter of a U.S. citizen. Further, in some countries, the child will not be a citizen of the country in which he/she is born because the surrogate mother is not legally the parent of said child. This could result in a child being born without citizenship.
In Australia, all jurisdictions except the Northern Territory allow altruistic surrogacy, but commercial surrogacy is a criminal offense. The Northern Territory has no legislation governing surrogacy. In New South Wales, Queensland and the Australian Capital Territory it is an offence to enter into international commercial surrogacy arrangements, with potential penalties extending to imprisonment for up to one year in Australian Capital Territory, up to two years in New South Wales and up to three years in Queensland.
The Assisted Human Reproduction Act (AHRC) permits only altruistic surrogacy: surrogate mothers may be reimbursed for approved expenses but payment of any other consideration or fee is illegal. Quebec law, however, does not recognize surrogacy arrangements, whether commercial or altruistic.
Gainful surrogacy is made illegal by the Charter of Fundamental Rights, whose Article 3 states that “making the human body and its parts as such a source of financial gain” is prohibited.
Law 3305/2005 (“Enforcement of Medically Assisted Reproduction”) makes surrogacy in Greece fully legal. Greece is only one of a handful of countries in the world to give legal protection to intended parents. Intended parents must meet certain qualifications and will go before a family judge before entering into a surrogacy contract. As long as they meet the qualifications, the court appearance is procedural and their application will be granted. At present, intended parents must be in a heterosexual partnership or be a single female. Females must be able to prove there is a medical indication they cannot carry and be no older than 50 at the time of the contract. As in all jurisdictions, surrogates must pass medical and psychological tests so they can prove to the court that they are medically and mentally fit. Greece is the only country in Europe, and one of only countries in the world, where the surrogate then has no rights over the child. The intended parents become the legal parents from conception, and there is no mention of the surrogate mother anywhere on hospital or birth documents. The intended parent(s) are listed as the parents. This even applies if an egg or sperm donor is used by one of the partners.
As a result of the Schengen Treaty, intended parents from throughout Europe can freely travel home as soon as the baby is born and deal with citizenship issues at that time, as opposed to applying at their own embassy in Greece. Before 2014 (pursuant to art. 8 of Law 3089/2002), the surrogate mother and the commissioning parents were required to be Greek citizens or permanent residents. However, in July 2014, L. 4272/2014 extended legal surrogacy to applicants or surrogate mothers who have either permanent or temporary residence in Greece.
There is no law in Ireland governing surrogacy. In 2005 a Government appointed Commission published a comprehensive report on Assisted Human Reproduction, which made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would under Irish law be regarded as the parents of the child. Despite the publication there has been no legislation published, and the area essentially remains unregulated. Due to mounting pressure from Irish citizens going abroad to have children through surrogacy, the Minister for Justice, Equality and Defence published guidelines for them on 21 February 2012.
This section does not cite any sources. Please help improve this section by adding citations to reliable sources. Unsourced material may be challenged and removed. (October 2017) (Learn how and when to remove this template message)In 2016, gestational surrogacy was legalized in Portugal. Discussions on the adoption of this law lasted more than 3 years. The first version of the law was adopted May 13, 2016, but the president vetoed it. He demanded that the law specify the rights and obligations of all participants.Portugal allows surrogacy only for those couples in which the woman cannot carry and give birth to a child for medical reasons. Only atruistic surrogacy is permitted. A written agreement must be issued between the surrogate mother and the genetic parents. The rights and obligations of the parties as well as their actions in cases of force majeure should be included in it. After the birth, parental rights over the child belong to the genetic parents.Traditional surrogacy (in which the surrogate is a genetic parent) is illegal in Portugal.
Heterosexual and lesbian couples can become parents via surrogacy in Portugal under the 2016 law. Male homosexual couples and single men and women of any sexual orientation have not yet been included, but they are not addressed specifically. A revision to include them is on the current manifestos of several parties (the Left Bloc, PAN – People–Animals–Nature and Os Verdes – The Greens). The populist right party CDS-PPand the Portuguese Communist Party, the most socially conservative parties in parliament, are opposed. Since the Constitution of Portugalexplicitly bans discrimination on the basis of sexual orientation, the lack of inclusion in the current law could be held unconstitutional.
Surrogacy in New ZealandAltruistic surrogacy is legal, but commercial surrogacy is not.NigeriaGestational surrogacy is currently practiced in Nigeria by a few IVF clinics, under practice guidelines from the Association of Fertility and Reproductive Health of Nigeria. An assisted reproduction technology regulation being considered by the Senate permits surrogacy and allows payments for transport and other expenses.
The South Africa Children’s Act of 2005 (which came fully into force in 2010) enabled the “commissioning parents” and the surrogate to have their surrogacy agreement validated by the High Court even before fertilization. This allows the commissioning parents to be recognized as legal parents from the outset of the process and helps prevent uncertainty. If the surrogate mother is the genetic mother, however, she has until 60 days after the birth of the child to change her mind. The law permits single people and gay couples to be commissioning parents. However, only those domiciled in South Africa benefit from the protection of the law, no non-validated agreements will be enforced, and agreements must be altruistic rather than commercial. If there is only one commissioning parent, s/he must be genetically related to the child. If there are two, they must both be genetically related to the child unless that is physically impossible due to infertility or sex (as in the case of a same sex couple). The commissioning parent or parents must be physically unable to birth a child independently. The surrogate mother must have had at least one pregnancy and viable delivery and have at least one living child. The surrogate mother has the right to unilaterally terminate the pregnancy, but she must consult with and inform the commissioning parents, and if she is terminating for a non-medical reason, may be obliged to refund any medical reimbursements she had received.
Commercial surrogacy arrangements are not legal in the United Kingdom. Such arrangements were prohibited by the Surrogacy Arrangements Act 1985. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship is recognised under section 30 of the Human Fertilisation and Embryology Act 1990. Regardless of contractual or financial consideration for expenses, surrogacy arrangements are not legally enforceable so a surrogate mother maintains the legal right of determination for the child, even if they are genetically unrelated. Unless a parental order or adoption order is made, the surrogate mother remains the legal mother of the child.
Surrogacy and its attendant legal issues fall under state jurisdiction and the legal situation for surrogacy varies greatly from state to state. Some states have written legislation, while others have developed common law regimes for dealing with surrogacy issues. Some states facilitate surrogacy and surrogacy contracts, others simply refuse to enforce them, and some penalize commercial surrogacy. Surrogacy-friendly states tend to enforce both commercial and altruistic surrogacy contracts and facilitate straightforward ways for the intended parents to be recognized as the child’s legal parents. Some relatively surrogacy-friendly states offer support only for married heterosexual couples. Generally, only gestational surrogacy is supported and traditional surrogacy finds little to no legal support. States generally considered to be surrogacy friendly include California, Illinois, Arkansas, Maryland, and New Hampshire. For legal purposes, key factors are where the contract is completed, where the surrogate mother resides, and where the birth takes place.
Therefore, individuals living in a non-friendly state can still benefit from the polices of surrogacy friendly states by working with a surrogate who lives and will give birth in a friendly state.
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