| The legal aspects surrounding surrogacy are complex, diverse and mostly unsettled. In most of the countries world over , the woman giving birth to a child is considered as the Child's legal mother. However, in very few countries, the Intended Parents are be recognized as the legal parents from birth by the virtue of the fact that the Surrogate has contracted to give the birth of the Child for the commissioned Parents. India is one country amongst the few, which recognize the Intended/ Commissioning Parent/s as the legal parents. Many states now issue pre-birth orders through the courts placing the name(s) of the intended parent(s) on the birth certificate from the start. In others the possibility of surrogacy is either not recognized (all contracts specifying different legal parents are void), or is prohibited.
In all the states of Australia, the surrogate mother is regarded/considered by the law to be the legal mother of the child and any surrogacy agreement giving custody to others is void and unenforceable in the courts of Law. In addition in all states and the Australian Capital Territory arranging commercial surrogacy is a criminal offence, although the Northern Territory has no legislation governing surrogacy at all and there are seems no near future plans to introduce laws on surrogacy into the NT Legislative Assembly.
Usually couples who make surrogacy arrangements in Australia must adopt the child rather than being recognized as birth parents, particularly if the surrogate mother is married. After the announcement, Victoria changed their legislation since January 1st, 2010, under the Assisted Reproductive Treatment Act, 2008, to make altruistic surrogacy within the state legal, however commercial surrogacy is still illegal.
Since June 1st, 2010 in Queensland, altruistic surrogacy became legal under the Surrogacy Act, 2010. Recently North South Wales (NSW) has come up with Surrogacy Bill, with it being passed by the Legislation but the Proclamation of the same is yet to take effect and it seems that the same will happen by Feburary, 2011 thereby prohibiting commercial surrogacy and making Altruistic Surrogacy the Law of the day.
Commercial Surrogacy is prohibited under the Assisted Human Reproduction Act, 2004. Altruistic surrogacy remains legal.
In the province of Quebec, contracts that involve surrogacy are unenforceable.
In France, since 1994 any surrogacy arrangement whether it is commercial or altruistic is illegal, unlawful and prohibited by the law.
Commercial surrogacy is illegal in Hungary.
Commercial surrogacy has been legal in India since 2002.
India is emerging as a leader in international surrogacy and a sought after destination in surrogacy-related fertility tourism. Indian surrogates have been increasingly popular with fertile couples in industrialized nations because of the relatively low cost. Indian clinics are at the same time becoming more competitive, not just in the pricing, but in the hiring and retention of Indian females as surrogates. Clinics charge patients roughly a third of the price compared with going through the procedure in the UK.
Surrogacy in India is relatively low cost and the legal environment is favorable. In 2008, the Supreme Court of India in the Manji's case (Japanese Baby) has held that commercial surrogacy is permitted in India with a direction to the Legislature to pass an appropriate Law governing Surrogacy in India. At present the Surrogacy Contract between the parties and the Assisted Reproductive Technique (ART) Clinics guidelines are the guiding force. Giving due regard to the apex court directions, the Legislature has enacted ART BILL, 2008 which is still pending and is expected to come in force somewhere in the next coming year. The law commission of India has specifically reviewed the Surrogacy Law keeping in mind that in India that India is an International Surrogacy destination.
International Surrogacy involves bilateral issues, where the laws of both the nations have to be at par/uniformity else the concerns and interests of parties involved will remain unresolved and thus, giving due regard to the concerns and in order to prevent the commercialization of the Human Reproductive system, exploitation of women and the commodification of Children, the law commission has submitted it’s report with the relevant suggestion:
The Law Commission of India has submitted the 228th Report on “NEED FOR LEGISLATION TO REGULATE ASSISTED REPRODUCTIVE TECHNOLOGY CLINICS AS WELL AS RIGHTS AND OBLIGATIONS OF PARTIES TO A SURROGACY.” The following observations had been made by the Law Commission: -
(a) Surrogacy arrangement will continue to be governed by contract amongst parties, which will contain all the terms requiring consent of surrogate mother to bear child, agreement of her husband and other family members for the same, medical procedures of artificial insemination, reimbursement of all reasonable expenses for carrying child to full term, willingness to hand over the child born to the commissioning parent(s), etc. But such an arrangement should not be for commercial purposes.
(b) A surrogacy arrangement should provide for financial support for surrogate child in the event of death of the commissioning couple or individual before delivery of the child, or divorce between the intended parents and subsequent willingness of none to take delivery of the child.
(c) A surrogacy contract should necessarily take care of life insurance cover for surrogate mother.
(d) One of the intended parents should be a donor as well, because the bond of love and affection with a child primarily emanates from biological relationship. Also, the chances of various kinds of child-abuse, which have been noticed in cases of adoptions, will be reduced. In case the intended parent is single, he or she should be a donor to be able to have a surrogate child. Otherwise, adoption is the way to have a child which is resorted to if biological (natural) parents and adoptive parents are different.
(e) Legislation itself should recognize a surrogate child to be the legitimate child of the commissioning parent(s) without there being any need for adoption or even declaration of guardian.
(f) The birth certificate of the surrogate child should contain the name(s) of the commissioning parent(s) only.
(g) Right to privacy of donor as well as surrogate mother should be protected.
(h) Sex-selective surrogacy should be prohibited.
(i) Cases of abortions should be governed by the Medical Termination of Pregnancy Act 1971 only.
The Report has come largely in support of the Surrogacy in India, highlighting a proper way of operating surrogacy in Indian conditions. Exploitation of the women through surrogacy is another worrying factor, which the law has to address. The Law Commission has strongly recommended against Commercial Surrogacy. However, this is a great step forward to the present situation. We can expect a legislation to come by early 2011 with the passing of the Assisted Reproductive Technology Bill aiming to regulate the surrogacy business.
Israel the first country in the world to implement a form of state-controlled surrogacy in which each and every contract must be approved directly by the state. In March 1996, the Israeli government legalized gestational surrogacy under the "Embryo Carrying Agreements Law." Surrogacy arrangements are permitted only to Israeli citizens who share the same religion. Surrogates must be single, widowed or divorced and only infertile heterosexual couples are allowed to hire surrogates. Due to the numerous restrictions on surrogacy under Israeli law, the Israeli intended parents have turned to International Surrogacy. India is the preferred destination because of its low costs. Then Intended Parents also turn to US surrogates where an added bonus is an automatic US citizenship for the newborn.
In March 2008, the Science Council of Japan proposed a ban on surrogacy and said that doctors, agents and their clients should be punished for commercial surrogacy arrangements.
Netherlands and Belgium
Commercial surrogacy is illegal in Belgium and the Netherlands.
Surrogacy arrangements have been legal in the United Kingdom since 2009. Whilst it is illegal in the UK to pay more than expenses for a surrogacy, the relationship can be recognized under Section 30 of the Human Fertilization and Embryology Act, 1990 under which a court may make parental orders similar to adoption orders. How this came about is one of those occasions when an ordinary person can change the law.
Many states have their own state laws written regarding the legality of surrogate parenting. It is most common for surrogates to reside in Florida and California due to the surrogacy-accommodating laws in these states. With the accommodating laws of the State of California and the long overseas deployments of husbands, wives have found surrogacy to be a means to supplement military incomes and to provide a needed service. It is illegal to hire a surrogate in New York, and even embryonic transfers may not be done in New York. At this point, the laws surrounding surrogacy are well defined in the State of Pennsylvania, and surrogacy is beginning to become common in the state of Delaware.