What is the Best Country for Surrogacy?

Selecting the ideal country for your surrogacy journey is a pivotal decision, one that can significantly impact your experience and outcome. In this article, we delve into the complexities of this choice, shedding light on why it’s more important than you might initially realize.

The legal landscape of surrogacy varies greatly from one country to another and can change unexpectedly due to shifts in government policies. It is not uncommon for professionals in the field to be caught off guard by sudden regulatory changes. Unfortunately, some online resources may not provide accurate or reliable information, and we have encountered instances where laws are misrepresented to align with the agendas of agencies or lawyers.

For instance, we often encounter statements like this one: ‘USA – Surrogacy in this country is rather widely practiced even though there are no specific regulations on this matter. Clinics work under their guidelines and under the general medical law.’ Contrary to such claims, surrogacy has been legally practiced in the United States for over four decades, with the majority of states having clear pro-surrogacy legislation in place.

Navigating the wealth of information available online can be overwhelming. However, it is essential to ensure you are equipped with accurate and up-to-date knowledge as you embark on this journey of creating your family through surrogacy.

Considerations When Evaluating Surrogacy Laws.

Always review relevant legal documents such as laws, bills, regulations, or court cases directly rather than solely relying on secondhand information. While you may not understand every detail, familiarizing yourself with the law’s content is crucial.
Adhering strictly to the law of a country is vital for ensuring a safe surrogacy journey. Deviating from legal guidelines could lead to unexpected complications or legal issues. For example, if a law permits uncompensated surrogacy and specifies steps for parental recognition, following these guidelines precisely is crucial. Offering additional compensation beyond medical expenses, even as a gesture of gratitude, may breach the law and have serious consequences.
Learning from past cases is crucial to understanding the necessity of strict adherence to surrogacy laws. In Russia, some agencies assumed that since the principle of gender equality is enshrined in the Russian State Constitution, single men could participate in surrogacy. Consequently, several court cases upheld this right, allowing single fathers to have their names on birth certificates. However, a state investigation revealed that some of the single fathers were gay men or gay couples posing as single men, whose rights and acceptance are regressing in Russia. Subsequently, arrest warrants were issued against the intended fathers, doctors, clinic staff, and lawyers involved in these cases. This highlights the importance of understanding and complying with surrogacy laws to avoid legal repercussions and protect the integrity of the surrogacy process.
Be cautious in countries where surrogacy has been practiced without specific laws. The sudden change in regulations, as seen in India, Cambodia, Thailand, and Mexico, can leave surrogates and intended parents in legal limbo.
Avoid dishonesty about personal circumstances, as it can lead to fraud charges with severe consequences. Deceptions, such as misrepresenting relationships or intentions, may have serious legal ramifications and jeopardize the well-being of your family.

Consider the Laws of Birth & Residence.

Another aspect to consider in surrogacy arrangements is the legal framework governing the birth and residence of the child. Depending on the circumstances, the applicable laws may involve one country’s jurisdiction or up to three countries. These typically include:

The country of the child’s birth.
The country’s laws regarding passport issuance for the child.
The laws of the country where the child will reside.

An illustrative example of the complexities that can arise from overlooking these legal considerations is the case of Andrew and Elad. Andrew, an American citizen, and Elad, an Israeli citizen, faced legal barriers to marriage in both the USA and Israel. They relocated to Canada, where they married in 2010. In 2016, their twin boys were born to a surrogate in Canada, using sperm from each father and donor eggs.

When Andrew applied for an American passport for his sons, Ethan and Aiden, complications arose. While Aiden, biologically related to Andrew, was granted an American passport, Ethan, who shared no DNA with Andrew, was denied. This denial stemmed from the Immigration and Nationality Act, which requires at least one US intended parent to be biologically related to the child born abroad via surrogacy.

Andrew initiated legal proceedings on behalf of Ethan, seeking equal rights for his son. After a lengthy four-year court battle, Ethan was finally issued his American passport. This case underscores the importance of understanding and navigating the legal complexities surrounding surrogacy to avoid potential litigation and safeguard the rights of all parties involved.

Absence of a Legal Framework.

The absence of a legal framework significantly escalates the risks associated with surrogacy. This scenario has unfolded in several countries, where negative publicity surrounding a surrogacy case prompted sudden administrative actions declaring surrogacy as a form of human trafficking. Consequently, authorities refused to issue birth certificates or travel documents to anyone involved in surrogacy, plunging intended parents into chaos as they were not recognized as legal parents and were unable to leave the country with their newborns. Surrogates, meanwhile, were deemed legal mothers and faced the threat of prosecution for their involvement and payments received, while professionals faced criminal charges. Working in countries lacking regulation or statutory legislation permitting surrogacy entails significant risks.

Moreover, in the absence of favorable surrogacy laws, intended parents face the daunting prospect of no legal protection if the surrogate chooses not to relinquish the child. Resolving custody disputes would necessitate filing a court case in the local jurisdiction, where the law typically favors the woman who gave birth to the child. Engaging in a custody battle is not only financially burdensome but also protracted, potentially lasting for years.

Cross-border Surrogacy.

Cross-border surrogacy involves the surrogate achieving pregnancy in one country but traveling to another for childbirth. While this approach can significantly reduce costs, typically by at least $25,000, it also introduces certain risks.

One risk factor concerns the legal permission for the surrogate to enter the delivery country. For instance, if a surrogate from Country A intends to travel to the United States for childbirth, she may encounter difficulties if not legally permitted to enter the US for this purpose. Falsifying reasons for entry or entering illegally poses significant legal risks, including prosecution for providing false information on federal paperwork. Similar challenges arise in cases where the embryo transfer occurs in Northern Cyprus but the childbirth occurs in the UK.

Additionally, the surrogate’s ability to travel presents another risk factor. Complications such as a high-risk pregnancy, premature delivery, or unforeseen accidents during travel could result in the child being born in a country lacking pro-surrogacy laws. In such cases, the intended parents may face challenges in securing legal recognition as the child’s guardians, potentially necessitating court intervention to establish parental rights.