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The Laws Surrounding Surrogacy

The recent case of Gammy, a baby with Down’s Syndrome that was born to a surrogate mother in Thailand and supposedly abandoned by her intended Australian parents, has given rise to international outrage and a fair few questions about surrogacy. Such as, what is it and where do people go to arrange for it. In this article, we will look at a few of these questions and attempt to provide you with clear answers.

What is Surrogacy?

The basic principle behind surrogacy is that a woman becomes pregnant with the intention of handing the baby over to someone else after the birth. Usually, the people, called the intended parents, that the baby is being handed over to are unable to conceive and have children of their own. There are 2 types of surrogacy, traditional and gestational. In traditional surrogacy, the surrogate mother’s eggs are used, which makes her the baby’s genetic mother. In gestational surrogacy, the eggs come from the intended mother or another donor. In both cases, the egg is fertilized through IVF and then placed inside the surrogate mother’s womb to be hopefully carried to term.

Is Surrogacy Legal?

It depends on the country. There are some, like France, Germany, Italy, Spain, Portugal and Bulgaria, that prohibit all forms of surrogacy. In others, like the UK, Denmark and Belgium, surrogacy is permitted so long as the surrogate mother is not paid, or just paid for reasonable expenses such as travel to doctor’s visits, medication and the like. In yet other countries, like India, Russia and some parts of the US, the surrogate mother can be paid a fee for her services.

It is possible for people looking to become parents to travel abroad if their home country doesn’t allow surrogacy, however, the rules may not be the same for all countries or even different parts of the same country. For instance, certain states in Australia have criminalized travelling abroad for commercial surrogacy, while other states allow it.

Legal Framework Surrounding Surrogacy

As you’ve probably noticed, surrogacy isn’t illegal in most countries. However, there isn’t much legal framework to support the practice. For instance, Thailand doesn’t have very clear regulations around the practice, other than surrogates must be related by blood to the intended parents. In India, the current legislation is quite restrictive and shuts the door to singles and gay couples.

Another thing to consider is that there are no internationally-recognized laws surrounding surrogacy which can leave parents and children vulnerable – and even stateless in some instances. In cases of international surrogacy, it can take a while to bring a surrogate baby back to the parents’ home country, as they may not be automatically recognized as the legal parents. Taking the cases of Thailand and the UK, surrogate mothers are seen as the legal mother of the child. In India, the intended parents are the legal parents. Therefore, a baby born to an Indian mother, but with British intended 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, since in most cases, as the person who supplied the sperm, the father will have parental rights, while the mother may not be regarded as a parent for the child, since more often than not, the egg is provided by a third party.

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?

Experts argue that regulation is also needed to ensure that clinics are properly regulated, and mothers are adequately compensated, given proper healthcare, and properly consenting on surrogacy matters. 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.

What is your stance on surrogacy? Share your views in the comments below.

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