Surrogacy across borders: What you should know
International surrogacy laws vary significantly across the globe, creating a complex legal framework for intended parents and surrogates to navigate.
Following in the footsteps of celebrities like Lily Collins, Kim Kardashian, and Ollie Locke, a rising number of couples in the UK are choosing to explore surrogacy as a way to grow their family. Especially for people suffering with infertility or health issues, and members of the LGBTQ + community, surrogacy can present an exciting opportunity to realise their dreams. Where restrictive regulations governing surrogacy in England and Wales can be quite limiting, many prospective parents are tempted to explore options abroad.
The Law in England and Wales
In England and Wales, only altruistic surrogacy is permitted (i.e. not commercial surrogacy). The intended parents can fund the surrogate’s ‘reasonable expenses’ such as rent, groceries, utilities, equipment, and medical costs, but it is not legal to make a commercial payment to a surrogate for the service of carrying a child. Surrogacy agreements and arrangements in England and Wales cannot be enforced, which means everyone involved (the intended parents and the surrogate) rely on each other’s trust.
Upon the child’s birth, the surrogate is automatically recognised as the legal parent. If married or in a civil partnership, the surrogate’s spouse/civil partner will also be considered as a legal parent. Anyone named on the birth certificate will also hold the status of legal parent, but there can only exist two legal parents at any one time. Legal parentage entails parental responsibility, meaning the right to make certain decisions about the child, including who they live with, where they attend school, what religion they practice, and what medical treatment they receive. Legal parentage is also an important factor when considering the child’s inheritance rights.
International attitudes to surrogacy
It can be a challenge to navigate the vast array of international surrogacy laws, which reflect differing cultural attitudes towards surrogacy, and are often subject to change following shifts in the political climates. For example:
- United States: Some states, such as California, are known for their supportive legal frameworks for commercial surrogacy.
- Ukraine: Previously a popular destination, Ukraine permits commercial surrogacy only for married heterosexual couples with medical need. The intended parents are recognised from conception.
- Greece: Only permitted for heterosexual couples and single women, not single men. Requires a court application before embryo transfer, allowing intended parents to be recognised at birth.
- Ireland: Permits only altruistic surrogacy, both domestic and internationally. Commercial surrogacy is illegal, and a criminal offence and bars intended parents from obtaining a parental order.
- Germany and France: All forms of surrogacy are prohibited.
- Italy: Criminalised surrogacy globally for its citizens in October 2024, making it a “universal crime” to use a surrogate in Italy or internationally.
- New Mexico: There are no laws regulating surrogacy arrangements, and in practice courts often name intended parents directly on the birth certificate.
- India: Commercial surrogacy was banned in 2021. Only heterosexual couples with infertility issues may access altruistic surrogacy, on the condition that their surrogate is a close relative, not an unrelated party.
- Nepal: In 2015, the practice of commercial surrogacy was suspended. Surrogacy is legal for infertile Nepali married couples, but illegal for single men or women, transgender couples, and foreign nationals.
Depending on the country, commercial surrogacy costs can range from around £30,000 in places like Ukraine to over $200,000 in some states in the United States.
When planning to grow your family by surrogacy, it is important to consider the laws in your home country and any country in which the intended surrogate lives. Prospective parents should not only consider the legality of any surrogacy arrangements (i.e. whether such arrangements are legal in the country where they are), but also any steps that may be required to ensure they are recognised as the legal parents of the child once they arrive, in both the country of birth and home country.
Returning to England and Wales
Even if a couple are recognised as the legal parents in the country where the surrogacy took place, it will still be necessary to undertake a legal process in England and Wales to be recognised as the child’s parents in this jurisdiction. Typically, the pathway to recognition of legal parentage in relation to the surrogate child’s legal is an application for parental order or adoption.
Couples will need to carefully consider the implications of using commercial arrangements abroad, as the Courts of England and Wales will scrutinise these arrangements when determining legal parentage.
A Global Model?
For those relying on surrogacy to build their families, the emotional journey can be overwhelming, and the UK’s current system can feel like a dead end with uncertainty around the enforceability of arrangements and only altruistic surrogacy permitted. Inevitably, many prospective parents are turning to overseas agencies in countries with more structured legal frameworks.
However, after the joy of birth abroad, parents must overcome what might feel like hurdles to bring their child home – navigating complex applications for parental orders to be recognised as their child’s legal parent. As surrogacy laws continue to be shaped by each country’s unique values and politics, we remain some distance from achieving a global model of built on transparency, clarity, and compassion. Reform of surrogacy laws is a pressing issue across many jurisdictions, and we will continue to observe developments in this area.
For modern families considering international surrogacy, it is essential to seek legal advice both at home and abroad. Our Family team has specialist knowledge of international surrogacy and can advise you to properly plan for your future family.
