Surrogacy, a subject both popular and controversial worldwide, finds varying degrees of acceptance across European nations. Despite the significant demand for this infertility solution, European leaders are hesitant to legalize the procedure in their countries. The reluctance is rooted in moral, ethical, and religious concerns.
Germany
In Germany, artificial insemination using selected gametes for optimal traits is illegal, with violators facing either a year in prison or a fine. All medical professionals involved are subject to punishment, though the surrogate mother herself is exempt.
USA
Currently, surrogacy is officially permitted in only eight states in the USA. However, four states (Arizona, New York, Utah, and Washington), along with the District of Columbia, deem it illegal. In other states, decisions are made based on individual circumstances. Surrogacy clinics in the USA impose specific criteria on potential surrogates, including age (18 to 35 years), marital status, and having at least one child. Surrogacy contracts, legally binding for both parties, also determine guardianship of the child in the event of the parents’ death. Surrogates must undergo thorough medical screening and genetic disease testing before contract finalization.
Infertility, both male and female, along with other health issues preventing pregnancy, compel Americans to opt for surrogacy. It is also a chosen method for same-sex couples wanting children.
India
Surrogacy is immensely popular in India, often considered the ‘Mecca’ of surrogacy. Thousands of couples worldwide travel there, contributing to the increasing number of surrogates annually. India has earned an informal title as the ‘global center for surrogacy.’ According to local laws, the newborn is immediately handed over to the genetic parents, and the surrogate has no rights over the child. The cost is three times less compared to Europe. Since 2013, Indian authorities have tightened surrogacy regulations for foreigners. The Ministry of Internal Affairs introduced new rules prohibiting surrogacy for homosexual couples. Now, only heterosexual couples married for over two years are eligible for a surrogacy visa. This change has affected many gay couples from Europe, the USA, and Australia, who previously benefited from India’s lax laws and lower costs compared to Western countries.
United Kingdom
The UK’s legislation is tolerant towards surrogacy.
In 1990, the UK Parliament passed a law on surrogacy. This law also established the Department of Artificial Fertilization and Embryology, which is responsible for controlling and regulating the in vitro fertilization process, sperm and embryo storage, and the development of embryology research. This department, under the Ministry of Health, must also provide information to people interested in these matters. The act stipulates that a family can request the court to recognize the child as their own if:
- The couple is married
- The child was conceived using the gametes of one of the spouses
- The request is made within the first six months after the child’s birth
- At least one of the parents is a UK citizen
- The parents are at least 18 years old
- The child’s registered place of residence is the same as the parents’
- The surrogate mother must relinquish the child six weeks after birth
- The family compensates the surrogate mother within reasonable norms to support her during pregnancy
Ukraine
First and foremost, it should be noted that surrogacy is legal in Ukraine. That is why the cost of surrogacy procedure in Ukraine is one of the lowest in the world. There are many agencies and high competition. Any healthy woman can become a surrogate mother, and there are enough of them for foreign couples. The legal aspects of surrogacy are governed by:
- The Family Code of Ukraine
- The Order of the Ministry of Justice of Ukraine “On Amendments to the Rules for the Registration of Acts of Civil Status in Ukraine” No. 1154/5 dated November 22, 2007
- The Order of the Ministry of Health of Ukraine “On Approval of the Instruction on the Procedure for the Application of Assisted Reproductive Technologies” No. 771 dated December 23, 2008
According to part 2 of Article 123 of the Family Code of Ukraine, in cases where an embryo conceived by a couple using assisted reproductive technologies is transferred to another woman’s body, the parents of the child are the spouses.
The Order of the Ministry of Justice of Ukraine No. 1154/5 dated November 22, 2007, establishes the procedure for registering children born as a result of reproductive programs: “In the case of a child’s birth by a woman who was implanted with an embryo conceived by a couple, the registration of birth is conducted based on the couple’s application, who consented to the implantation. In this case, along with the document confirming the child’s birth by this woman, a notarized written consent of hers for registering the couple as the child’s parents is submitted.”
The Order of the Ministry of Health of Ukraine No. 771 dated December 23, 2008, approved the Instruction on the Procedure for the Application of Assisted Reproductive Technologies (ART), which includes conditions for the treatment of ART using surrogacy. Specifically, it defines that:
- The examination of a surrogate mother is conducted on the general basis for ART treatment;
- A surrogate mother can be an adult, capable woman, provided she has her own healthy child, her voluntary written consent, and no medical contraindications;
- Medical care for the surrogate mother is provided according to clinical protocols.
In the legal arrangement of relationships between potential parents and a surrogate mother, if the latter is in a registered marriage, the written and notarized consent of her spouse for her participation in the surrogacy program is required.
Summary
Surrogacy legality varies globally, reflecting diverse moral, ethical, and religious views. Germany prohibits artificial insemination with selected gametes, imposing penalties on violators but not on surrogate mothers. In the USA, eight states permit surrogacy, with stringent surrogate requirements. India, once a popular surrogacy destination, now restricts its availability to heterosexual couples married for over two years.
Spain authorizes sperm and egg donation but bans surrogacy and embryo destruction. France outlaws surrogacy, denying automatic citizenship to children born abroad through surrogacy; recent efforts aim to facilitate citizenship for such children. The United Kingdom adopts a more tolerant stance, regulating surrogacy through the Department of Artificial Fertilization and Embryology.
Ukraine presents as a favorable surrogacy destination, with laws offering protection and clear guidelines. Ukrainian legal framework, encompassing the Family Code and orders from the Ministry of Health and Justice, supports surrogacy, legally recognizing intending parents as the legal parents under specific conditions.
Collaboration with Ukrainian surrogate agencies offers a legally secure and well-regulated path for surrogacy, helping navigate legal complexities for surrogates and intending parents.
