Surrogate babies: Where can you have them, and is it legal?

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File photo a pregnant woman, 1 April 2014Image source, PA
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Surrogacy laws vary from country to country, which can leave children vulnerable

The case of Gammy, a baby with Down's syndrome who was born to a Thai surrogate mother and allegedly left behind by the intended Australian parents, has caused international controversy. Where do people go to arrange for surrogate babies, and is it legal?

What is surrogacy?

Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Generally, she carries the baby for a couple or parent who cannot conceive a child themselves - they are known as "intended parents".

There are two forms of surrogacy. In traditional surrogacy, the surrogate mother's egg is used, making her the genetic mother. In gestational surrogacy, the egg is provided by the intended mother or a donor. The egg is fertilised through in vitro fertilisation (IVF) and then placed inside the surrogate mother.

It varies from country to country.

In countries including the UK, Ireland, Denmark and Belgium, surrogacy is allowed where the surrogate mother is not paid, or only paid for reasonable expenses. Paying the mother a fee (known as commercial surrogacy) is prohibited.

Image source, Getty Images
Image caption,
Elton John (right) and David Furnish are among the celebrities to become parents of a baby born to a surrogate

Commercial surrogacy is legal in some US states, and countries including India, Russia and Ukraine.

People who want to be parents may go abroad if their home country does not allow surrogacy, or if they cannot find a surrogate.

However, even here, the laws may vary. For example, some Australian states have criminalised going to another country for commercial surrogacy, while others permit it.

Where do people go for surrogacy?

Experts say that countries popular with parents for surrogacy arrangements are the US, India, Thailand, Ukraine and Russia.

Mexico, Nepal, Poland and Georgia are also among the countries described as possibilities for surrogacy arrangements.

Costs vary significantly from country to country, and also depend on the number of IVF cycles needed, and whether health insurance is required.

Image source, AFP
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An Indian nurse is seen with a surrogate baby. India is a popular destination for surrogacy arrangements

Families Through Surrogacy, an international non-profit surrogacy organisation, has estimated the approximate average costs in different countries:

  • US - $100,000 (£60,000)
  • India - $47,350
  • Thailand - $52,000
  • Ukraine - $49,950
  • Georgia - $49,950
  • Mexico - $45,000

There are few statistics on how many children are born through surrogacy arrangements, as many countries do not formally record this.

Nicola Scott, a lawyer with UK family law firm Natalie Gamble Associates, says that about 25% of her firm's clients go to the US, often because they feel it is safer.

"The US has a very long history of surrogacy. One reason is that the parents know there are established frameworks in many states, particularly California, so there is safety associated with going there," she says.

Why do women become surrogate mothers? Sarah Wisniewski, Surrogacy UK

We're aware of how, just taking a year out of our lives can drastically help someone else's life.

The majority of us have our own children, although a couple of the surrogate mothers in our network are childless.

We appreciate and are grateful for our own children too - the majority of us just see pregnancy as something we find very easy - something we can do while getting on with our everyday lives.

"People who choose other destinations tend to do so because a surrogacy there typically costs a lot less than in the US."

In many countries, "surrogacy isn't illegal, but there's no framework to support it," Ms Scott says.

For example, Thailand does not have clear regulations surrounding surrogacy. However, legislation has been drafted to regulate surrogacy, and authorities now say the surrogates must be a blood relative of the intended parents.

Similarly, India is considering legislation which could "massively restrict surrogacy", Ms Scott says, and will "shut the door to singles and gay couples".

What are the complications?

There are no internationally recognised laws for surrogacy, so many parents and children can be left vulnerable - or even stateless.

It can take several months to bring a surrogate baby back to the parents' home country, as they may not be automatically recognised as the legal parents.

"In Thailand, surrogates are seen as the legal mother, so if the parents leave the baby with the mother, she is legally responsible. This is one of the difficulties seen in the Gammy case," Ms Scott says.

"In India, the intended parents are seen as the legal parents," whereas under UK law, the surrogate mother is recognised as the legal mother.

Image source, AFP
Image caption,
The case of Gammy (right) who was born to a surrogate mother, has caused controversy in Australia and Thailand

"This means a surrogate baby born in India, for UK parents, is born stateless, and has to apply for British citizenship."

Depending on the parents' legal status in their home country, things can also become difficult if the couple split up, Paul Beaumont, a Professor of EU and Private International Law at the University of Aberdeen, and author of the book International Surrogacy Arrangements, says.

"There can be an unfair advantage in a custody dispute. The father will often have parental rights, as the one who supplied the sperm, whereas, more often than not, the egg has been provided by a third party donor... so the mother may not be regarded as the parent of the child," Prof Beaumont says.

Many experts argue that an international agreement, similar to the Hague Adoption Convention, is needed so that rules are consistent across different countries.

However, this could be difficult since countries are divided in their views of surrogacy.

Are there risks for surrogate mothers?

Prof Beaumont argues that regulation is also needed to ensure that "clinics are properly regulated and mothers are adequately compensated, given proper healthcare, and properly consenting".

Regulation would also ensure that "the intending parents are considered suitable to be parents in their home country", he adds.

Without regulation, one potential risk for many surrogate mothers is that "if the child is born with some kind of defect, the intending parents could abandon the child", as has been claimed in the Gammy case.

Although it is difficult to get hard evidence of exploitation, it is also possible that, like any potentially lucrative industry, surrogacy could be open to abuse, with women forced to act as surrogate mothers for profiteers, Prof Beaumont says.

My experience with surrogacy: Richard Westoby, author of Our Journey: One Couple's Guide to US Surrogacy

We chose to go to the US because my partner is American, and there is a legal framework in place in a lot of states that protects the surrogates, the intended parents, and the child.

All the parties involved had legal representation - our surrogate had her own lawyer represent her when we were negotiating the contract.

We spoke about the whole situation - what we were expecting regarding the number of embryos, caesareans, abortion - everything was discussed up front, so everyone was fully informed.

It's so important that people have the whole picture before it starts. So many things can and do go wrong if you're not properly counselled and guided through the process.

Surrogates don't get a huge amount of money. I think surrogates are phenomenal women going through the process because they want to help other people enrich their lives with family.

My partner was in the room when the twins were born. It's the same as when any parent meets their child for the first time - there were lots of tears. It was indescribable.

There's nothing like when your children open their eyes for the first time. It was an incredible feeling.

Our surrogate is part of our life now - we email regularly and she comes to the UK to see the children.