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The legal situation surrounding surrogacy varies from state to state. There are states where surrogacy is banned outright. Other states allow both commercial and altruistic surrogacy.

In Texas, since 2003, court-approved gestational surrogacy arrangement is enforceable. That is, even if the gestational mother is compensated. If they meet the statutory requirement (for parenthood) and obtain a court approval for their agreement, the commissioning parents will be legally recognized as the parents of the child upon birth. There is no need for an adoption process. Their names will go directly onto the birth certificate.

In contrast, In New Jersey, the husband of a woman artificially inseminated with semen from a donor is legally treated as the natural father of any child born as long as he has consented to the insemination and this has occurred under the supervision of a licensed physician.

Surrogacy in Canada

In Canada, commercial surrogacy is prohibited. Altruistic surrogacy can still legally take place. There is strong protection for the surrogate mother in the law. She can change her mind within 30 days of the birth and decide to keep the child. She does not have to give a reason.

Surrogacy in Germany, France and Italy...

In Germany, like in Italy and France, surrogacy is banned outright. In Germany, a section of the law for the protection of the embryos (‘Embryonenschutzgesetz’) states that “No medical practitioner should perform artificial insemination or embryo donation on a woman who is willing to hand the child over to commissioning parents upon birth”. Non-compliance is a criminal offence. There is even a section of the law which prohibits facilitating surrogacy by announcements, advertisement or bringing together a prospective surrogate and commissioning parents.

Surrogacy in India

In the last few years, India has become a popular destination for people looking for surrogate mothers. This is because of two main reasons: There are still no laws in India governing surrogacy. This situation has allowed the practise to flourish.

The second reason is cost. Commissioning parents are almost exclusively from the rich west. The compensation for a surrogate mother in India ranges from 3 to 6 thousand US dollars. Whilst that is a fortune for many India young women, it is peanuts comparing to what is paid out in the commissioning parents’ own countries in Western Europe and North America. The cost in these countries is rarely below US$20,000, If IVF is also involved; the cost could easily be double that, even more. An IVF cycle in India costs on average US$2,000.

The total cost for foreign commissioning parents in India, including travel and board would tend to hover around US$ 15,000 - 20,000. This practise is, somewhat controversially, termed baby outsourcing or fertility tourism.

Surrogacy in Israel

Israel has a detailed and fairly restrictive surrogacy law. Traditional surrogacy is prohibited. This means, a surrogate mother cannot use her own eggs and cannot therefore be genetically related to the child. Nor can a married woman act as a surrogate. Every surrogacy arrangement has got to be sanctioned by the state. Gay couples cannot commission surrogacy in Israel.

Important issues to consider in surrogacy

The quest for a child can potentially blind individuals to the possible hurdles to a good outcome of a surrogacy arrangement. It is important for any woman or couple considering going this route to address these thoroughly before starting.

v Change of mind: There is a possibility that the surrogate mother might change her mind and decide to keep the child. In some places, there is a legal recourse in this situation. In most countries, the surrogate mother is legally recognised and the commissioning parents are likely to lose out in such a case. This is the situation in the UK where 1 in 25 surrogate mothers do decide to keep the children.

v A child with a major abnormality. This can and has been known to happen. The situation could be compounded by rejection of the child by both the commissioning parents and the surrogate mother.

v More than one child resulting. Where the arrangement and expectation of both parties is for one child and twins (or more) resulting from the insemination. This can create a situation where one of the children resulting is unwanted by both parties. Psychological ramifications of this can be considerable and long-lasting.

v Financial issues. Even in altruistic surrogacy arrangements, there are financial issues between the parties. Reasonable expenses need to be spelt out clearly and in detail. Wrangling about finances during the pregnancy or afterwards can so badly poison the atmosphere that the outcome will not please anybody.

v Medical decisions: sometimes complications develop during the course of the pregnancy which require decisions that might impact adversely on the outcome. It is important for the commissioning parents to be aware that the surrogate mother has complete autonomy over her body and her wellbeing during the course of the pregnancy. Issues that might require her to terminate her pregnancy, have a caesarean rather than a vaginal birth (or vice versa), receive a blood transfusion etc remain hers to decide. Commissioning parents cannot and should not try to take over this role. Other seemingly less contentious issues such as smoking or drinking alcohol during pregnancy need to be frankly discussed and settled before embarking on the arrangement.

v Transmission of infection: It is important to address these issues properly before cementing the arrangement. Artificial insemination can result in transmission of such serious infections as HIV or hepatitis. Proper medical tests need to be carried out before starting the actual process

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More than one? It may not be what the commissioning parents were aiming or planning for.

Triplet surrogacy Danielle Bimber

The classic surrogacy controversy: Danielle Bimber of the triplets surrogacy case. The commissioning parents did not get the children until three years after their birth (see previous page)