Surrogacy law: Regulation, surrogacy agreements, and finding the right ART lawyer!
Embarking on becoming a surrogate can be both meaningful and deeply rewarding, but the perceived complexity of the process can be discouraging for new surrogates. To further add to the confusion, surrogacy law and the applicable regulations can vary significantly from one country to another. Learning how to find a surrogate in Australia is an entirely different process to others in North or South America.
So, how do you proceed with your commercial surrogacy journey if you don’t know where to start?
As with most new endeavors, the world of surrogacy does not have to be daunting. The initial step, of course, is to conduct thorough research and receive some sound surrogate law advice. And the best way to cover ground is to familiarize yourself with the universal facets of surrogacy. As you progress in your research, you can utilize the foundational knowledge you’ve acquired to navigate the specificities of your unique surrogacy journey.
Naturally, our team at NewGen Families encourages potential Surrogates to acquaint themselves with the different forms of surrogacy first, as it will help you learn the definition of a surrogate, determine whether surrogacy is legal and feasible in your region, and much more.
Discover the importance of surrogacy law on your path to becoming a Gestational Carrier!
Please note that the NewGen Families team is not a substitute for legal advice. Surrogacy involves complex legal considerations that can vary by location and circumstances. Always consult with qualified legal experts who specialize in surrogacy and assisted reproductive technology (ART) law to ensure your rights and interests are protected.
What is the definition of ‘surrogate’ under relevant surrogacy law?
Surrogacy law defines a surrogate as an individual who agrees to become pregnant, typically through assisted reproductive technology, to surrender the child to the intended parents after birth. Legal agreements bind the arrangement and are subject to the specific regulations of each state or territory, with a common consensus that the surrogate does not intend to be the child’s legal mother, distinguishing this role from traditional motherhood.
Is surrogacy legal?
There is no denying that surrogacy law is confusing. The legal framework varies internationally, and the results can depend on the circumstances of each case. Before getting too overwhelmed or becoming a surrogate, first receiving expert surrogate law advice will always work in your favor.
Many of the restrictions you might find in surrogacy law are rooted in safeguarding surrogates from exploitation and health risks. However, they can also emerge from various religious and cultural systems that oppose surrogacy as a fundamental concept. These factors collectively contribute to the imposition of international restrictions.
So, ‘Is surrogacy legal?’
Well, the answer depends on the country and the context of their surrogacy law. In the next section, we will overview some country-specific surrogacy laws that may be relevant to you.
Countries permitting Altruistic Surrogacy
|It is prohibited to arrange commercial surrogacy in Australia. Residents of New South Wales (NSW), Queensland (QLD), and the Australian Capital Territory (ACT) face additional legal restrictions, making it illegal for them to engage in international commercial surrogacy arrangements from abroad.
Residents of Victoria (VIC) have a unique legal position that allows them to travel overseas to pursue commercial surrogacy arrangements.
|Department of Foreign Affairs and Trade (Smart Traveller, 2023)
|In Canada, it’s legal to reimburse a Surrogate for reasonable out-of-pocket, surrogacy-related expenses. However, offering compensation for surrogacy can lead to severe penalties.
This includes activities such as paying a Surrogate, arranging Surrogate services for payment, or assisting a woman under 21 years of age in becoming a Surrogate through medical procedures, all of which are prohibited.
|The Assisted Human Reproduction Act 2004 (Government of Canada: Prohibitions related to Surrogacy, 2023)
|Surrogacy agreements are not enforceable by UK law, even if you have a signed document with your Surrogate and have paid their expenses. Therefore, legal parenthood can only be transferred by parental order or adoption after the child is born.
According to the Surrogacy Arrangements Act (1985), advertising that you are seeking a Surrogate or are a potential Surrogate looking for IP(s) is an offense. It is also an offense to arrange or negotiate a commercial surrogacy arrangement as an enterprise.
|The Surrogacy Arrangements Act (Department of Health and Social Care, 2023)
|Surrogacy is permitted if the IPs make a private arrangement with someone they know. IPs are not allowed to publicly announce that they are looking for a Surrogate, including via social media posts.
That said, it is still legal to reimburse the Surrogate for her expenses throughout the journey.
|Articles 151b and 151c of the Dutch Criminal Code (Government of the Netherlands, 2023)
|The Belgian government does not recognize foreign surrogacy-related documents, as their parental status is not automatically acknowledged. This situation requires legal action within Belgium to resolve issues related to travel documents and parental recognition for children born via surrogacy abroad.
|Acknowledgment of Parentage (Federal Public ServiceForeign Affairs,Foreign Trade andDevelopment Cooperation, 2023)
Countries permitting Altruistic Surrogacy and Commercial Surrogacy
|An Intended Parent(s) shall be recognized as the legal parent or parents of a child, provided that the Surrogate and the Intended Parent(s) comply with the state’s legal requirements.
|D.C. Law 21-255. Collaborative Reproduction Amendment Act of 2016 (Council of the District of Columbia, 2023)
|There are no federal surrogacy laws in the United States. Instead, surrogacy laws are determined at the state level and vary significantly.
|Legal sources include state statutes, court decisions, and legal resources related to family and assisted reproductive technology (ART) law. It’s crucial to consult with experienced surrogacy attorneys and agencies, familiar with the laws in the specific state where you plan to pursue surrogacy.
Several countries have enacted strict regulations banning altruistic and commercial surrogacy practices altogether. Among others, these countries include France, Germany, Spain, Italy, Japan, and Switzerland. In these nations, surrogacy is heavily prohibited. Individuals considering this journey should receive tailored surrogate law advice to be aware of the legal landscape in their respective countries and seek legal counsel to navigate these complex regulations.
How to find a surrogate in Australia?
NewGen Families – Surrogacy Agency firmly believes that surrogacy is not a one-size-fits-all endeavor. Our beautiful family of intended parents includes Italians, Australians, Americans, Belgians, Germans, Israelis, Swedes, and Greeks. Our surrogates are based in the United States and Colombia, eager to assist intended parents from around the globe.
What are surrogacy agreements?
Surrogacy agreements are another component of surrogacy law that future surrogates should acquaint themselves with. These legally binding contracts protect the rights and well-being of those looking at becoming a surrogate, the intended parent(s), and the future child.
Surrogacy agreements are meticulously drafted and executed at various stages of the surrogacy journey, alongside the expertise of an Assisted Reproductive Technology (ART) lawyer who can provide detailed, personalized surrogate law advice.
Let’s walk you through some of the contracts you may be introduced to as a Gestational Carrier!
The Gestational Carrier Agreement
The Gestational Carrier Agreement (GCA) is a legally binding contract written between intended parents and their surrogate. It includes compensation and reimbursement agreements, which adhere to the surrogacy laws of your jurisdiction and are written per your Surrogate’s Benefits Package, health insurance plan, health and life insurance policies, and birth plan.
The Parental Rights Court Order
The Parental Rights Court Order involves the legal establishment of the intended parent(s) as the child’s legal parent(s). Two types of court orders are involved in this phase: the Pre-birth Order and the Post-birth Order, both of which serve the same ultimate purpose.
The Pre-birth Order is a legal document initiated before the surrogate gives birth. Its primary function is to legally recognize and establish the intended parent(s) as the child’s legal parent(s) from birth.
The Post-birth Order serves a similar purpose. However, the order is only filed after the surrogate has given birth. While the timing differs, the objective remains consistent. This legal document solidifies parental rights in cases where a Pre-birth Order is not a legal, feasible option.
In essence, both Pre-birth and Post-birth Orders ensure that the Intended Parent(s) have the legal recognition and rights to provide the child with a secure and loving family environment after agreeing with a third party looking at becoming a surrogate.
Disparities in international surrogacy law often revolve around the crucial issue of fair compensation for surrogates. Concerns arise that private organizations might entice financially disadvantaged women into becoming a surrogate, without providing them fair remuneration for their pivotal role. For example, many people wonder, ‘Do surrogates get paid if they miscarry?’
Thus, prospective surrogates should conduct thorough research on the average surrogacy cost in their country before committing to this journey. The average surrogacy cost varies significantly due to multiple factors, including medical expenses, legal fees, surrogate compensation, agency charges, and other miscellaneous expenditures.
Consequently, the overall cost of surrogacy can fluctuate significantly, ranging from approximately $45,000 to $100,000. Variables such as geographical location, the complexity of the surrogacy agreement, and individual circumstances also contribute to this cost variation.
NewGen Families ensures that our Gestational Carriers’ funds are held securely in a fully bonded escrow account. Through the use of this escrow system, surrogate compensation is not only guaranteed but also disbursed promptly and per the agreed-upon timeline.
This commitment to security allows both the surrogate and the intended family to experience peace of mind, fostering a harmonious and stress-free journey centered around the shared objective of creating a family.
In addition to adhering to the surrogacy laws of your jurisdiction, those looking at becoming a surrogate should choose agencies that respect their autonomy as individuals and as professionals. As a NewGen Surrogate, you determine your compensation amount, select the intended parents you wish to work with, and choose a qualified ART attorney to represent you in the legal process and provide tailored surrogate law advice.
While the Surrogate Support Team will assist you in making these decisions, the final choices are yours.
Choosing the right ART lawyer to provide tailored surrogate law advice
Choosing the right ART lawyer can feel like an overwhelmingly difficult task. However, it is paramount to choose a legal expert with specialized knowledge in the field to provide detailed surrogate law advice.
When interviewing potential lawyers, determine whether they have a track record of advocating for Surrogates’ rights. It is vital to find a lawyer who prioritizes your interests as a surrogate above all else.
A proficient attorney will also guide you through the intricacies of surrogacy agreements. This includes addressing questions or concerns and highlighting critical provisions that protect your rights and interests.
Those interested in becoming a surrogate should also ensure that their attorney can provide clear, timely communication and support throughout the legal processes involved in surrogacy law, including the drafting and execution of surrogacy agreements.
Speak with our team to learn more about becoming a surrogate and applicable surrogacy law
Navigating the complex world of surrogacy law may be challenging, but with the support of a trusted agency like NewGen Families and our experienced Surrogate Support team, you’re not alone on your journey to surrogacy.
Whether it’s finding the right lawyer to provide detailed surrogate law advice or ensuring your legal needs are met, we’re here to guide you every step of the way in becoming a surrogate.
Are you interested in becoming a surrogate? Take our quick quiz to see if you pre-qualify!