The State of International Surrogacy as Country After Country Shuts its Doors

Inherent in the structure of DNA is a desire to be passed on. In the past, adoption was the only option for infertile couples, homosexual couples, or individuals to start a family. Recently, however, infertility issues have been addressed through Assisted Reproductive Technologies (ART) that come in many forms like fertility drugs, artificial insemination, and in-vitro fertilization. Along with the rise of these technologies comes the rise of gestational surrogates. Traditional surrogacy is a situation like where the biblical Abraham impregnated his servant Hagar to have a child because his wife Sarah was infertile.1 Gestational surrogacy, on the other hand, typically uses ART to implant embryos made from either donated gametes (sperm and eggs) or the gametes of the intended parents.1To some, surrogacy is a way to grant the gift of new life to those who could not create new life on their own. To others, surrogacy is seen as nothing more than a code for baby selling1 with all the same human trafficking problems as “baby farming.”1 Surrogacy arrangements take an altruistic form (free) or a commercial form where the surrogate is paid for the service of gestating the child. Some countries ban all surrogacy, some countries only allow the altruistic variety, and other countries allow commercial surrogacy.1 Legal issues surrounding surrogacy arrangements are often dealt with using the legal framework in place for adoption, but this does not really address the situation before the child is born. The major common legal concerns with surrogacy arrangements stem from law surrounding the contractual relationship, aka is the contract enforceable, which affects issues like payment, suing for breach of contract, who the rightful parent(s) is/are, who gives up a right to the child, and even what amount of control the obligor can assert on the body of the obligee.1 The legal context only becomes more complex, like most topics, when it becomes international.

Many European countries do not allow any surrogacy at all or specifically only allow altruistic surrogacy.1 Commercial surrogacy is also illegal in Australia.1 Even though it is legal in parts of America, getting a surrogate in the United States is incredibly expensive compared to other countries.1 Due to costs or legal prohibitions in their original country, many couples and individuals seek ART and gestational surrogates in countries beyond their own. Unfortunately, there have been more than a few horror stories related to international surrogacy. In a 2015 HBO Vice documentary, “Outsourcing Embryos,” correspondent Gianna Toboni investigated part of the surrogacy industry in India and found that women were greatly underpaid, unable to visit family, kept in dorms, and even that “extra” babies were sometimes being sold on the black market.1 “Extra” babies are not infrequent as some fertility drugs increase the chance of twins and multiple embryos are usually implanted simultaneously to increase the chance of success, thus, lowering the cost connected to multiple attempts.1

In the late part of 2015, the Indian government began cracking down on foreigners using surrogacy in India, the Indian Supreme Court agreed, and a bill called the “Assisted Reproductive Technology Bill,” which bans foreigners from using surrogates, is still pending.1 Thailand also recently created laws outlawing commercial surrogacy, especially for foreigners, after two scandalizing incidents.1 One of the scandals involved an Australian couple who found out that the boy of a set of boy-girl twins had down syndrome, and then refused to take him with them to Australia.1 The couple claimed they would have aborted the child with down syndrome, but were informed too late in the pregnancy of his status.1 However, the gestational mother of "baby Gammy" claims that she would have refused an abortion anyway.1 The second scandal involved a twenty-four year old man from Japan, named Mitsutoki Shigeta, who used surrogates to have at least 16 children.1 He claimed various motives from trusting only his own children to run his businesses to simply trying to leave as many children behind as he could before he died.1 Although this behavior is strange, abuses of similar kinds have occurred in other ART contexts and, without a concerted monitoring effort, it is likely not the last time such a thing will occur.1 Recently, other countries with explicit surrogacy laws have banned foreigners from using local surrogates too. Also in late 2015, Nepal1 and the only Mexican state, Tabasco, that had explicit laws on surrogacy similarly banned foreigners.1 Vietnam has recently allowed altruistic surrogacy, but has carefully avoided allowing commercial surrogacy.1 In early 2016, Morocco’s legislature began considering a bill to make surrogacy criminal; the only other African country to have an explicit legal stance on surrogacy is South Africa, which only allows altruistic surrogacy.1 Some countries that allow altruistic surrogacy limit the use to relatives or, alternatively, specifically deny foreign nationals.1 Meanwhile, there are some countries like Ukraine who allow international commercial surrogacy, but outlaw use by homosexual couples either specifically or through marriage requirements when same-sex marriage is not allowed.1 There are also countries who have either not spoken on surrogacy or are unclear where they stand. In 2001, the Chinese Health Ministry banned doctors from offering surrogacy services, but it did not have the force of law.1 At this time, there is no official Chinese law on the precise issue and, surprisingly, language attached to the new two-child policy that would have banned surrogacy was ultimately dropped.1

Overall, the clear trend is that more countries are banning surrogacy. However, when international surrogacy is swatted in one country some of the business tends to move to another country or continues under the radar. For example, in late 2015, after India and Thailand banned foreigners from using surrogates in their borders, some business shifted to other countries like Cambodia, which quickly began to consider whether to label surrogacy as per se human trafficking.1 The current ambiguous state of the law surrounding international commercial surrogacy is dangerous to everyone involved. From human trafficking, to baby farming, baby selling, murky laws on bioethics 1, nationality, and lax parent screening 1 the situation is dangerous for the surrogate, the person seeking a child, and even the children themselves. One obvious legal conundrum is the nationality of the child, which could interfere with crossing borders and other rights. The first question is whether countries have dual-citizenship laws or whether a country only allows people to have one citizenship at a time. Also, citizenship depends upon whether countries give nationality on a jus soli system, a jus sanguinis system, or a hybrid system. Traditional, unrestricted jus soli is when nationality is determined based upon being born in a country, regardless of lineage.1 Birthright citizenship, as unrestricted jus soli is also called, is more common in the Americas. 1 In North America specifically, Canada only allows altruistic surrogacy 1, Quebec does not allow surrogacy at all1, and, as stated before, Mexican states have either banned the practice for foreigners or have not made laws to address it. Meanwhile, several states of the U.S.A. do allow commercial surrogacy.1 There is a possibility that surrogacy in the United States could be used as a proxy form of birth tourism, but that is a topic for another day.1 Jus Sanguinis is when the bloodline of the parents, or a parent, is used to determine the nationality of the child.1 The issue can be whether the laws of the country look at the lineage of one parent versus both, if one parent then which parent, and whether the country looks to the gestational parent who gave birth, or the genetic parents, which becomes an issue if the controlling gamete comes from a donor. The risk of producing a stateless child is reduced in countries that are members of the 1961 treaty on reducing statelessness.1 However, there is the very real possibility that any number of mismatches in countries will result in stateless children or that children cannot go to the state they were intended to. Issues of this nature only grow increasingly worse in countries where the law has not been decided either way or where a child is created when the practice is legal, but born when the practice is illegal. Depending upon the country, and the willingness of the gestational parent, it is possible to use the receiving country’s laws on international adoption to help naturalize or grant citizenship after the child is born.1 This of course relies on adoptions between the two countries being permissible1 and being able to take the surrogate or the child out of the surrogate’s country in the first place.1 Still, the central issues of commercial surrogacy are either unlawful under adoption laws or not considered; these three issues are: (1) the enforceability of the surrogacy contract (aka demanding payment and respective rights of the parties), (2) whether the payment is for the baby or the service of gestation, and (3) the ability to cement parental rights before the child is born. The second issue matters because many countries are already parties to treaties that forbid the sale of children.1 There is currently no international treaty to deal with international surrogacy and, although legal issues with surrogacy are sometimes handled through adoption laws, it has been found that past international treaties dealing with adoption are unable to fill the gaps.1 Although the Permanent Bureau of the Hague Conference on Private International Law has been working on a Parentage/Surrogacy Project for sometime, nothing has currently come to fruition.1

Where does that leave us? The first concern is whether surrogacy should be illegal outright to act as a deterrent for most potential parents, though it may still occur underground, or whether it should be legal, and thus more common, but with more regulation. The reality of international surrogacy is that most parents to be come from wealthier nations that are using women from the third world as surrogates because it is cheaper. The practice of international commercial surrogacy does lead to some exploitation of the third world that ventures very close to the same human trafficking and exploitation concerns with international organ trafficking and “transplant tourism.”1 There are also varying levels of human rights, women’s rights, medical rights, abortion rights, contract rights, bio-ethics laws, adoption laws, including whether homosexuals or single persons are treated differently, that make creating an international solution difficult. Most importantly, there is the reality that different countries have different cultural or moral standards and any question involving babies and mothers is likely to be a sensitive one. If surrogacy is to be legal under an international treaty, one potential solution would be to allow commercial surrogacy contracts, but look to adoption law and existing protective surrogacy laws for ways to protect the gestational mother from exploitation and serve the best interests of the child. For example, the best interests of the child could be the primary focus like it is in other treaties dealing with children1 and gestational mothers could be protected from exploitation by placing limits, such as needing to be above a certain age, needing to have had one child of their own already, being required to receive a certain percentage of the fees, and having a limit of times they may function as a surrogate. The problem is that unless the treaty specifies what the best interests of children are various countries will have vastly different interpretations. For instance, imagine countries that would prefer one gender to have the child over another or a country that might automatically prefer the wealthier parent regardless of other concerns. It is difficult to imagine an international agreement could be reached on that issue. Without a firm definition in place the same level of ambiguity that is problematic in the current legal landscape would likely persist. Whatever solutions are considered, clinics acting as middlemen across borders must be monitored; trusting these clinics to monitor themselves is asking for trouble. In the United States this is done on a voluntary basis through accreditation with the Society for Assisted Reproductive Technologies under the Clinical Laboratory Improvement Act, which requires background checks, federal oversight, and biannual inspections.1 Voluntary, possibly private, accreditation and auditing is more feasible than assuming poorer countries will monitor the practice on their own. Third-party auditors do, unfortunately, run into an age-old problem. The only group with money to pay the auditors will be the clinics the auditors audit. With this temptation on the table, who will monitor the monitors? Likewise, mandatory enforcement is probably impossible.

Ironically for us, as many countries make surrogacy illegal to foreigners, the best country to find a legal international surrogate may currently be the United States. The only problem is that the United States is also likely the most expensive.1 Surrogacy is allowed, tolerated, or outright banned in the United States based upon each state’s law.1 On one side of the scale is New York, which does not allow surrogacy contracts to be enforced and makes some commercial surrogacy criminal.1 On the other side of the divide is California, which does allow commercial surrogacy contracts to be enforced.1 Even in California though, where surrogacy contracts are upheld, issues like how much control the intended parent can assert over the surrogate’s body in the contract (can they make the surrogate terminate an embryo) have not been definitively decided by a court. In the United States it is unlikely a universal approach will come to be. It is hard to imagine Congress wanting to openly stand on either side of the issue or encroach on the overlap of traditionally state concerns and intra-state commerce. Congress is unlikely to use its commerce power either way for interstate surrogacy.

If technology advances to the point where babies can be gestated outside a human womb, surrogacy may become a non-issue for those who can afford it, but the practice would likely be expensive, which is why surrogacy outside the United States is being sought in the first place. Perhaps the practice of international surrogacy will be so reduced by repeatedly being made illegal, and thus moving from country to country, that a concerted effort to address the problem is unnecessary in the long run. For now though, international surrogacy is an enigma that strikes at the heart of the human experience and the morality of unrestricted free market capitalism.



  1. Genesis 16:2.

  2. http://www.babycenter.com/surrogacy.

  3. David M. Smolin, Surrogacy as the Sale of Children: Applying Lessons Learned From Adoption to the Regulation of the Surrogacy Industry’s Global Marketing of Children 43 PEPP. L. REV. 265-341 (2016).

  4. http://www.bbc.com/news/world-africa-22484318 (baby farming is essentially the practice of keeping women or girls in a house or bunker and repeatedly impregnating them in order to sell the children)

  5. http://www.bbc.com/news/world-28679020

  6. https://verdict.justia.com/2016/01/19/one-surrogate-birth-for-man-may-mean-nothing-for-mankind (discussing the legal implications of complaint a complaint filed on January 4th, 2016, in Los Angeles County. The dispute centered on a contract provision allowing the obligor to request the mother to terminate one of three embryos. According the woman, the man also threatened to give up the child for adoption if not aborted, even though the mother volunteered to raise the child herself)

  7. http://www.bbc.com/news/world-28679020

  8. http://www.bellybelly.com.au/conception/surrogacy-basics-of-surrogacy-in-australia/

  9. http://www.bbc.com/news/world-28679020 (Listing: USA $100,000, Thailand $52,000, Ukraine $49,950, Georgia $49,950, India $47,350, Mexico $45,000)

  10. http://nymag.com/thecut/2015/03/dark-side-of-international-surrogacy.html; http://www.hbo.com/vice/episodes/03/26-lines-in-the-sand-and-outsourcing-embryos/index.html

  11. See http://fertilitycenterlv.com/single-vs-double-embryo-transfer/

  12. http://indialegalonline.com/in-search-of-a-womb/ (Nov) http://indianexpress.com/article/india/india-news-india/govt-to-make-commercial-surrogacy-illegal-panel-to-decide-on-cases-of-infertile-couples/ (Dec) http://www.telegraphindia.com/1160318/jsp/nation/story_75189.jsp#.VvTFMPQrK2w (March)

  13. http://www.bbc.com/news/world-asia-31546717; http://news.asiaone.com/news/asia/new-laws-get-tough-thailands-surrogacy-services

  14. http://www.bbc.com/news/world-australia-30892258

  15. Id.

  16. http://www.bbc.com/news/world-australia-30892258

  17. http://www.theguardian.com/world/2014/aug/14/police-hunt-japanese-man-suspected-human-trafficker-bangkok

  18. Id.

  19. At least two men who worked at in-vitro fertilization clinics were found to have replaced donor sperm with their own in the 90’s. One, Cecil Jacobson, was discovered in 1992 for having conceived 75 children through this method. He was convicted of 52 felony counts of various fraud crimes and perjury in United States v. Jacobson, No. 92-5406, slip op., 1993 WL 343172 (4th Cir. 1993). The other man, Tom Lippert, was only discovered more recently and the number of children he fathered is unknown. http://www.ksl.com/?nid=148&sid=28301758

  20. http://nepal.usembassy.gov/service/surrogacy-in-nepal.html

  21. http://mexiconewsdaily.com/news/tabasco-lawmakers-end-foreign-surrogacy/; http://www.theguardian.com/world/2015/dec/15/mexico-tabasco-state-surrogacy-gay-men-foreign-couples

  22. http://news.xinhuanet.com/english/2016-03/18/c_135201914.htm; http://vietnamnews.vn/society/294013/new-humanitarian-changes-to-surrogacy-laws.html

  23. http://www.ansamed.info/ansamed/en/news/sections/politics/2016/03/17/morocco-new-bill-against-surrogacy-ready_c0379004-56fb-45f6-80e7-6f7aac239c5d.html Morocco also recently forbid foreigners from adopting children from Morocco because of concerns that foreigners would not raise their children to be Muslim.

  24. E.g., http://www.findsurrogatemother.com/surrogacy-laws/international/greece (In Greece, courts will only approve an altruistic surrogacy agreement when the parties are both Greek citizens or permanent residents)

  25. Art. 123 Cl. 2 of the Family Code of Ukraine (“In case of transfer into other woman organism of human embryo conceived by the married couple due to the application of assisted reproductive technologies, the married couple is the parents of a child.”) Art. 122 Cl. 1 of the Family Code of Ukraine (only allows marriage between a man and a woman); see also http://en.surrogacy-ukraine.com/

  26. http://www.smh.com.au/comment/chinas-flirtation-with-surrogate-motherhood-as-the-one-child-policy-comes-to-an-end-20151230-glx5hr.html

  27. Id.

  28. http://www.khmertimeskh.com/news/17745/gov---t-to-crack-down-on-surrogacy-clinics/

  29. http://www.telegraph.co.uk/news/health/news/9504503/British-couples-flying-to-US-for-banned-baby-sex-selection.html (Britain only allows the use of pre-implantation genetic diagnosis to screen for sex if looking for a genetic disorders connected to sex chromosomes, but it is legal to screen for sex in the United States for the purpose of selecting a child’s biological sex.)

  30. Huddlestone v. Infertility Centre of America, Inc., 700 A.2d 453 (Pa. Super. Ct. 1997) (after handing the child over to the intended parent, per the surrogacy arrangement, the child died six weeks later as a result of repeated physical abuse.)

  31. http://www.npr.org/sections/thetwo-way/2015/08/18/432707866/3-things-you-should-know-about-birthright-citizenship; http://articles.chicagotribune.com/2010-09-16/opinion/ct-oped-0916-birthright-20100916_1_birthright-citizenship-illegal-aliens-alien-parents

  32. Id.

  33. Assisted Human Reproduction Act S.C. 2004 c. 2 Art. 6(1), 12(1), 12(2), 12(3) http://laws-lois.justice.gc.ca/eng/acts/A-13.4/page-1.html

  34. Civil Code of Quebec, 1991, c.64 Art. 541 (“any agreement whereby a woman undertakes to procreate or carry a child for another person is absolutely null.”)

  35. http://www.creativefamilyconnections.com/#!surrogacy-law-by-state/f49jq

  36. Birth tourism is when a person travels to another country to give birth there so that their child can benefit from birthright citizenship. These children are colloquially referred to as “anchor babies,” but, in reality, they cannot sponsor their family members for citizenship until they are 21 in the United States.

  37. http://www.npr.org/sections/thetwo-way/2015/08/18/432707866/3-things-you-should-know-about-birthright-citizenship

  38. Convention on the Reduction of Statelessness of 1961 989 U.N.T.S. 176-180 (1989) http://www.unhcr.org/3bbb286d8.html

  39. E.g., http://www.cic.gc.ca/english/citizenship/rules_2009/adoption.asp (Canadian Rules on citizenship or naturalization processes for children adopted from outside Canada)

  40. E.g., http://www.cic.gc.ca/english/immigrate/adoption/restrictions.asp (For example, Canada does not allow its citizens to adopt from certain countries and certain countries do not allow Canadians to adopt children from their country); http://www.cnn.com/2014/02/13/world/europe/russia-same-sex-marriage-adoption-ban/ (Russia instituted a ban on same-sex couples or single persons from countries where same-sex marriage is legal from adopting Russian children); Morocco currently has a ban on foreigners adopting children out of concern the children will not be raised as Muslims.

  41. http://www.womansday.com/relationships/family-friends/a50637/our-surrogate-gave-birth-in-mexico-and-the-government-wouldnt-let-us-take-our-baby-home/ (A couple whose baby was born in Tabasco, Mexico just after the ban was implemented was unable to get the birth certificate necessary to get a passport to take the baby home. It was not until they had the help of a human rights lawyer that they got the government to make an exception.) http://www.straitstimes.com/asia/se-asia/gay-couple-in-thai-surrogacy-battle (After giving birth the surrogate changed her mind so a gay couple must battle in court for the right to take the child home)

  42. E.g., Convention on the Rights of the Child 1989 Art. 35 (“States Parties shall take all appropriate national, bilateral, and multilateral measures to preventing the abduction of, the sale of or traffic in children for any purpose or in any form.”) http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

  43. Hague Conference on Private International Law, Private International Law Issues Surrounding the Status of Children, Including Issues Arising from International Surrogacy Arrangements Prel. Doc. No. 11, 2011, 43 https://assets.hcch.net/docs/f5991e3e-0f8b-430c-b030-ca93c8ef1c0a.pdf (For instance, Art. 4(c)(4) of the 1993 Intercountry Adoption Convention requires the consent of the mother to be given after the child’s birth and that the consent not be induced through compensation)

  44. https://www.hcch.net/en/projects/legislative-projects/parentage-surrogacy

  45. http://www.who.int/bulletin/volumes/85/12/06-039370/en/

  46. E.g., Art. 3 Cl. 1 Convention on the Rights of the Child 1989 available at http://www.ohchr.org/en/professionalinterest/pages/crc.aspx

  47. http://www.ksl.com/?nid=148&sid=28301758

  48. http://www.babycenter.com/surrogacy#articlesection9 (USA $150,000); http://www.khmertimeskh.com/news/17745/gov---t-to-crack-down-on-surrogacy-clinics/ (Cambodia $40,000); http://russiansurrogacy.net/surrogacy-program-pricing/ (Russia $36,500)
    http://www.bbc.com/news/world-28679020 (Listing: USA $100,000, Thailand $52,000, Ukraine $49,950, Georgia $49,950, India $47,350, Mexico $45,000)


  49. http://www.creativefamilyconnections.com/#!surrogacy-law-by-state/f49jq

  50. N.Y. Dom. Rel. Law § 8-122 (“Surrogate parenting contracts are hereby declared contrary to public policy of this state, and are void and unenforceable.”); N.Y. Dom. Rel. Law § 8-123(2).

  51. Cal. Fam. Code § 7960–62 (2013); Johnson v. Calvert, 851 P.2d 776 (1993); Buzzanca v. Buzzanca, 61 Cal. App. 4th 1412 (1998).

By: Garrett Smith, 2L Staff Editor