Men Having Babies: Guidelines for Safe, Legal and Ethical Surrogacy Abroad

When considering surrogacy outside the USA and Canada, Intended Parents should take into consideration the following aspects.
  • Legality/Lawfulness & Parentage - The legal framework for surrogacy in the country and state / province where the birth will occur and in the home country of the Intended Parents, and countries in which the Intended Parents hold citizenship, with proper consideration for the nationality of Intended Parents

    • National and local surrogacy laws are extremely relevant, both in terms of the specific regulations and restrictions, and the lack thereof. It is essential to understand what is and what is not lawful. Legal parentage in one jurisdiction does not necessarily translate to parentage in another. The first question will always be – who has legal parentage? That is not the same question as who are the biological parents, but asks instead who, under the law of the relevant country, will have legal parentage when the child is born?

    • Note that the relevant legal framework may not be clear. For example, in the absence of statutory law, the national legal framework and approach may be in the form of case law (precedents set by courts). Case law may or may not be published and accessible to the public, and may or may not be binding.

    • Intended Parents should not expect to be able to review and assess the legal framework relevant to surrogacy, and specifically the framework related to a new destination that they are considering. In this rapidly developing area of law, you must ensure the lawyer you engage has the most current information. Be prepared for a variety of possible outcomes. Experienced legal counsel, in the location of the intended surrogacy and the Intended Parent’s(s’) country(ies) of residence and citizenship, should be asked to advise the Intended Parents about the local laws, both prospectively and at the end of the process. Make sure this is an independent experienced lawyer, and not one that is financially tied to the agency that advances a new destination. Consider the previous surrogacy experience and credentials of the attorney who gave the legal opinion, and the availability or lack of availability of other legal opinions in that jurisdiction (a single legal opinion, unless given by a formal authority of the country, can be biased or unfounded).
      • What are the credentials of the local attorney, and how credible are they? How many cases have they had overall and with respect to IPs from your relevant jurisdiction(s)?
      • Is there more than one legal opinion regarding the legality of the local process? If there is just one, is there a way to reach a second one? Two separate opinions can help understand if one of them is biased.
      • Consult with local legal counsel (licensed and practicing in the jurisdiction where the surrogacy will occur) about the types of legal processes/parentage orders available and whether they can/will comply with the requirements of the laws and process of the Intended Parents’ country(ies) of residence and citizenship. In particular, these should also include procedures for termination of Surrogate’s parental rights, judicial establishment or recognition of parental rights of the genetic parent and, preferably, also status for the non-genetically related parent if applicable. Please be sure to speak to an attorney in your home jurisdiction (your residence and country(ies) of citizenship) to see if a judicial order is required or if an administrative process is sufficient because in some destinations a court order to confirm the legal establishment of parentage may not be possible.
      • Also ask the local counsel about citizenship, immigration, and passport/travel issues after the birth to clearly establish the child’s ability to travel home with the IPs within a reasonable time after birth.
      • Also ask the local counsel regarding options/requirements to have insurance coverage for the Surrogate and the resulting children. If the type of legal process affects availability and/or eligibility for insurance, the nature & risks of their interrelationship should also be discussed with both a lawyer and an insurance specialist.
      • The legal consultation prior to any Surrogate match should include a discussion with counsel in the Intended Parents’ country(ies) of residence and citizenship with respect to the key considerations for the establishment or recognition of the parental status in the relevant jurisdictions. For example, consider the marital status of the Surrogate, and the particular documentation (such as parentage/termination order vs. adoption order, and the required type of Surrogate’s waiver). Such legal discussions should also include instructions as to the requirements from the surrogacy contracts, such as with respect to the timing of execution, signatures, notarization, witnesses, apostilles, and translation.
      • All intending parents should have a written and signed contract in place with their Surrogate prior to any embryo transfer.
      • As Intended Parents’ country(ies) of citizenship would be involved in the process, sometimes having a respective consulate in the destination country itself (not a neighboring country) may be crucial.
      • As Intended Parents’ country(ies) of citizenship would be involved in the process, sometimes having a respective consulate in the destination country itself (not a neighboring country) may be crucial.
    • Avoid work-arounds of laws, such as temporarily establishing residence, buying local property, marrying local Surrogates, moving Surrogate to another country for delivery, etc.

    • Meet with the Surrogate to discuss the parentage project and the Surrogate’s wishes and hopes in terms of contact during and following the birth and her required involvement in any parentage proceedings.

    • Part of establishing your full parental status and rights is the free and informed relinquishment of any implied parental rights by the Surrogate.
      • Consider whether the consent of the Surrogate and any spouse or partner is required in your home country as part of the process to establish or recognize legal parentage, the form of the consent and whether it is attainable.
    • Inability to relinquish the rights of the Surrogate raises concerns as to potential exploitation and has resulted in Intended Parents that were stuck in the birth country without the ability to bring their babies home! Later, some have remained with the Surrogate registered on the children’s birth certificate as the legal mother, potentially indefinitely.

    • Intended Parents should be aware and concerned about the human trafficking aspects of surrogacy, especially when Surrogates must travel to the country of surrogacy from their country of residence: additional considerations of legality and jurisdiction, human rights protections (or lack thereof) in the destination country, termination of parental rights, immigration (with respect to Surrogates’ status in the country of birth, when do they have to travel for the process, how long are they required to stay there, under what visa, and what insurance coverage would they have).

    • Keep documents – Your original assisted reproduction documents (contracts, court documents, etc.) may be required as part of any parentage process in home country

    • Need for specialist Wills, Guardianship (temporary, standby, and permanent) and Insurance coverage. It is important to protect everyone involved in a surrogacy arrangement against the risk of one of the adults involved dying unexpectedly.

    • Consider availability of parental / maternity / adoption leave

  • Ethics and Social acceptance
    • Surrogacy in many countries is controversial and, even where it is legal or the legal position is unclear, it may be a very politically loaded subject. If done in ways that will be interpreted as unethical or contrary to other social norms and public policy, public outcry may lead to regulation or even sudden administrative decision that will shut down surrogacy for foreigners or even locals.
      • This has happened in several countries in recent years: e.g., India, Thailand, and Nepal.
    • Read and review the Men Having Babies framework for ethical surrogacy for IPs (https://goo.gl/KUtZbU).
      • Ensure that the agency and clinic abide at the very least by the Framework’s baseline protocols which best approximate guidelines of the American Society for Reproductive Medicine (“ASRM”) guidelines
      • Special considerations should be given to the way Surrogates choose agencies, the psychological screening of Surrogates, provision of independent counsel for Surrogates in their own language, potential exploitation through overwhelming financial incentives, living arrangements for Surrogates, and ability of forming relationships with Surrogates.
      • Attention should also be given to any framework in any destination country that allows the clinic/intermediaries to “skim” part of the carrier’s stated fee for their own benefit or where the fees are not otherwise transparent.
  • Attitude towards homosexuality and same-sex parentage
    • Surrogacy may be allowed in some countries, but only to heterosexual people. You may be advised that the genetic father can proceed as a “single” parent, and the rights of the non-genetic father will be established after the return home (assuming the rights of the Surrogates can be terminated without doubt). However, make sure to get independent legal opinion about the level of legal risk this arrangement involves, in particular to the non-genetic parent.
    • Regardless of surrogacy laws, and even if surrogacy is legally permissible for same-sex couples in a particular country, a general negative attitude toward homosexuality may be problematic. Make sure you will be safe there. A big warning sign may be the existence of anti-sodomy and “promotion of homosexual lifestyle” laws.
  • Other warning signs
    • Is this surrogacy track new? Have there been any surrogacy births in that destination, and are there credible examples of parents from your country who brought their babies home from the particular surrogacy destination?
    • Are there only parents from one country currently pursuing surrogacy in this country?
    • Assess before you start a surrogacy whether the surrogacy destination country will grant citizenship to the child and whether this may carry with it any tax consequences for the child later in life (i.e., tax on the child’s worldwide income once he/she starts earning income).
    • Have you been told to keep the process secret / confidential?
    • Does the contract with the agency/broker have strong language to shield them from any responsibility to the legality of the process?