When using surrogacy, it’s important to think carefully about the country you’re going to have treatment in. The legal framework and costs can be very different, clinics will have different protocols and the availability of both donors and surrogates can vary enormously from country to country. It’s essential to get good medical, emotional and legal advice from the start.
Surrogacy is more complicated than fertility treatment alone or simply using egg donation. Finding a surrogate and agreeing an arrangment can take a long time and people often use agencies to support that process.
Different countries have very different laws around the legal definition of motherhood, legal parenthood, nationality, citizenship and birth certification. Some countries prohibit surrogacy and some only allow it for heterosexual couples.
Some places, including the UK, have a more altruistic ‘friendship’ model for matching surrogates and intended parents. Here the idea is that intended parents and surrogates meet and connect and form a ‘team’ to move forward with treatment. Other places have a more ‘clinic/agency-led’ model where the intended parents (IPs) sometimes choose and meet the surrogate and sometimes don’t. Intended parents will work with a clinic or agency and all the arrangements with the surrogate and the treatment plans are managed through the clinic or agency.
In the US some states are surrogacy friendly and others are not. The states that are friendly generally have a more ‘commercial’ model and intended parents can choose the kind of surrogate they want (in terms of contact before, during and after the pregnancy) and the legal framework tends to be contract based. In that case, the surrogate and IPs agree the terms of their contract (including details of the financial arrangements, contact, medical choices etc) which is then legally binding. It’s the most expensive option but offers a certain degree of legal clarity and security.
Another consideration is how many children you might want in an ideal world. This could influence you in terms of where to choose to create your embryos and to locate your surrogate to ensure you get the best chance at completing your family, as this might take several years.
As our charity is based in the UK this is a summary of the situation in this country. Other countries vary enormously and aren’t covered in detail here. Lots of our members are having or have had treatment outside the UK who can share their experiences too.
Since April 2005, when the law changed, all donors used in UK clinics agreed to be identifiable to a child when they turn 18. The number of families that can be created from one donor was limited to 10. This is not easy to enforce with 100% certainty, but a donor recruited in the UK should be aware of the family limit and understand why it was introduced and would therefore, hopefully, be less likely to donate beyond that.
The Human Fertilisation and Embryology Authority (HFEA) regulates all UK clinics and holds information on donors, treatment cycles and children born in a register. Parents can ask for non-identifying information about the donor and details about any half-siblings on behalf of their child before they reach 18.
At 16 children can request non identifying about the donor and half-sibling numbers via the HFEA (their sex and year of birth). At 18 they can request identifying information about the donor via the HFEA, including contact information, although the donor is not under any obligation to respond or engage beyond the level they are comfortable with.
Children created through the same donor (half siblings) can be connected, by mutual consent, once they turn 18.
Donors can find out the number of children born as a result of their donation and the sex and year of birth. They aren’t able to access identifying information about these offspring and have to wait to be contacted. Donors’ own children are not included in the records and do not have the right to access any information.
In the UK, the woman who gives birth to a child is always the legal mother and goes on the birth certificate. In the case of surrogacy, if the woman is married her husband will be considered the baby’s legal father. Once the baby is born, intended parents need to apply to become the legal parents of their baby and get a new birth certificate.
The Human Fertilisation and Embryology Authority website has some useful information about surrogacy in the UK.
If you use a UK clinic they will be following UK law and guidance. If they recruit their own donors you should be able to ask for information about potential donors although you may not get huge amounts of personal detail. If you use a UK egg or sperm bank or import from abroad you may get more information and this can be an attraction.
Bear in mind that if you are using imported sperm or eggs, they will only comply with UK law when used in the UK. If they are exported to or used in other countries any limits to children or families created in those countries may be different, and ignore any children born elsewhere. So in the UK the 10 family limit will apply, but globally it probably won’t.
Egg donors are unlikely to create as many children as sperm donors, as they are unlikely to produce anywhere near the same quantity of donations and are therefore unlikely to hit the 10 family limit, let alone exceed it. However, with the improvements in technology for egg harvesting and freezing, that may not be true in the future.
Most countries have very different laws and treatment guidelines to the UK and to each other in terms of surrogacy and donor conception. For example, in Spain all donors are anonymous and you get very little information about them, sometimes just age and blood type. The US has different rules in different states. Other countries may prohibit surrogacy or egg donation or donor conception altogether, or just for some family set-ups (eg single women or same-sex couples).
Make sure you do your research. Our members have had treatment in many countries so do connect with us to hear about a wide variety of experiences.
If you’re having treatment outside your home country you need to know how your home country will interpret things legally when you return home. It’s important to do the preparation work to make sure you know how your child can become a legal citizen, get a passport and also whether and how you become your child’s legal parent. It isn’t always as straightforward as you might think.
As with all big decisions, it’s really worth spending time thinking about what is important to you and working out which jurisdiction will work best for you. Also bear in mind that how you feel may be different from how your child feels and feelings themselves change over time.
