Having children is normally considered one more step all families take through the journey of life. But for some couples, having a child may be difficult, or in more extreme cases, impossible. This can be a devastating state of affairs for any hopeful family that badly wants to bring children into their lives, but there is hope. For some, an act of charity, such as adopting a child in need from another part of the world is the solution. For others, however, surrogacy, through a willing surrogate mother is the preferred solution.
However, there are two big differences between adoption and surrogacy. Adoption itself is a time-honored solution that goes back centuries, if not millennia. Surrogate motherhood is not as common or as well-established, and, unlike adoption, is not universally recognized around the world as a legal option. There are a few different reasons for this, as you’ll see if you read further, but first, let’s go over the basics to see why there is even a variance in legality in the first place.
What Is Surrogate Motherhood?
Surrogate motherhood is the act of a woman agreeing to allow a fertilized egg to be implanted her uterus. In some cases, the egg may belong to the surrogate mother, or it may come from another source entirely, such as a donor, or a woman who wishes to have a child with her genetic characteristics, but who is unable to conceive naturally.
Under ideal circumstances, a hopeful family will meet with a surrogate mother—or perhaps know her already, and approach her with the idea of surrogacy—and work out the details. Once the surrogate mother agrees to take on this role, she receives the fertilized egg, and then allows for the natural development of the baby within, giving birth to the child nine months later, and then uniting that child with new, hopeful parents.
The Legal Question
However, this is where things can, depending on the part of the world, become very complicated. Before technologies and methods like gestational surrogacy became more commonplace, the laws surrounding parenthood were simpler and, in some ways, more primitive. Much older family laws recognize only two people as rightful holders to the title of the parent; the biological mother and father.
In a part of the world where this legal situation is enforced, surrogate motherhood is extremely dangerous, because it means that surrogacy, legally, does not “exist,” and therefore is not recognized. The situation in these parts of the world mean that if a couple takes a risk, and decides to engage a surrogate mother to have a child, that surrogate mother is, legally, recognized as the biological mother of the child and is under no obligation to surrender the child. Should the couple attempt to take the child anyway, they could be charged with kidnapping, as the laws of that region protect only the biological mother’s rights.
Countries & States
There are many parts of the world where such laws are still in practice. In some cases, there are specific countries where only parts of the country enforce such laws. The United States is one of these countries, depending on which state you decide to undertake surrogate motherhood. The state of Michigan, for example, only recognizes “compassionate/altruistic” surrogacy as legal. This means that if a family member/close friend agrees to act as a surrogate mother, with no financial compensation, the state will consider it legal. However, the moment that money is involved beyond the reimbursement of medical care/expenses, and some profit has been made from the birth, Michigan does not recognize the surrogacy as valid, and the mother that carried the child to term is considered the legal parent. On the other hand, the province of Quebec, in Canada, has banned surrogacy in all forms, including altruistic.
However, it’s not just parts of countries; entire nations can have similar policies. Saudi Arabia, for example, does not recognize surrogacy. Pakistan is another country where surrogacy in any form is not recognized and is thus an illegal activity, where surrogate parents cannot rely on being allowed to keep a child.
However, there are other countries—and even parts of countries—where surrogacy is allowed, though the type of surrogacy may vary. California, in the United States, for example, is the opposite of Michigan, and any type of surrogacy, whether altruistic, compensated, traditional, or gestational, is recognized in the state, with different legal arrangements in place to protect hopeful parents.
Other countries, such as Thailand, have actually changed their surrogacy laws in response to certain events. Thailand used to be a country that allowed compensated surrogacy, even by visitors from other countries. Today, however, it only allows surrogacy by locals, after an Australian couple abandoned a baby when it was found the surrogate mother had twins, but one had Down’s Syndrome. In other countries, such as Georgia, however, all types of surrogacy are legally permitted, with experienced organizations offering surrogacy services.