Legal protections for altruistic surrogacy expand in the U.K., Portugal and Canada

The British government is studying a new proposal to make the practice more attractive in the country

Surrogate mothers
Protestors at a Madrid conference on surrogacy.SANTI BURGOS

How is surrogacy viewed in different countries? In Spain, it is classified as a form of “violence against women.” In other parts of the world, however, the legal framework makes altruistic surrogacy allowed and even encouraged. We took a look at three cases where the latter holds true.

In the U.K., the surrogate mother can withdraw her consent

In late March, the parliamentary entities that review and propose reforms to British legislation published a draft bill to strengthen surrogacy by defining a “safe route” for the process. The British government must now decide whether to put the draft bill to a vote and establish it as law.

The proposed regulation is more reactive than protective since surrogacy agreements cannot be legally enforced in court. During traditional surrogacy, the surrogate uses her own egg for conception, which makes the surrogate the baby’s biological mother. Legal maternity of the newborn corresponds to the biological mother, so a lengthy adoption process must be followed after birth. The biological mother can also claim legal maternity in a family court at any time.

While surrogacy is ultimately altruistic, there is no legal limit on paying expenses. Costs do not have to be reduced to the minimum necessary; a court can increase or extend them. In the UK, intermediaries are forbidden to benefit from surrogacy arrangements.

The draft legislation enables aspiring parents to obtain legal guardianship of the child at birth. The biological mother can still withdraw her consent at any time, but a judge can dismiss this legal maternity claim if they believe it is detrimental to the child. The proposed regulation increases the number of required medical visits, and requires criminal background checks and psychological and legal counseling for both parties to the surrogacy agreement. “The new regulations will provide greater legal certainty, transparency and protection from potential exploitation and will create an effective regime that puts the interests of the child front and center,” said Nick Hopkins, the UK’s commissioner for property, family and trust law. The draft bill provides for regulated, not-for-profit agencies that supervise surrogacy relationships. It also will establish a registry to provide transparency in the process and allow children to trace their origins after reaching the age of majority.

The draft law also establishes more explicit rules on the payment of expenses. It allows compensation for the welfare and medical care of the biological mother and the baby, losses incurred, gestational support and travel expenses. But “compensatory fees” and payment of ordinary living expenses (house rent, food, etc.) are prohibited.

The proposed legislation aims to maintain the altruistic nature of “domestic surrogacy arrangements [within the UK] and make them more attractive” than hiring a surrogate in another country.

Liberal support in Portugal

On January 1, 2022, Portuguese law allowed surrogacy for women with physical problems that prevent them from carrying a child to term, legal language that excludes men (specific regulations pertaining to this law are still being developed). The law gives surrogate mothers the right to back out of the agreement during the first 20 days and only allows payment of health care expenses.

Unlike Spain, where liberals align with feminists against surrogacy, all the left-wing parties in Portugal, except the Portuguese Communist Party, support the law on surrogate pregnancies. On the right, only the Liberal Initiative party supports it.

Redress for the biological mother was not in the original law. It was only incorporated after a long parliamentary and legal journey, including a presidential veto and a Constitutional Court ruling that annulled several articles of the version approved in 2017. Four law reforms culminated in the one approved at the end of 2021.

Even though the political and legal path of the law is now clear, it has not been put into practice due to the delay in drafting regulations regarding crucial aspects, like whether lesbian couples and single mothers can enter into surrogacy arrangements. The Portuguese law establishes that “surrogacy legal transactions are only admissible on an exceptional basis and free of charge in cases of absence of the uterus, injury or disease of this organ or any other clinical situation that absolutely and definitively prevents the woman from becoming pregnant.” Portugal’s National Council for Medically Assisted Procreation will supervise the entire process between both parties. Biological mothers are also entitled to psychological counseling before and after delivery.

Not wanting to wait for Portugal’s final regulations, some couples traveled to other countries to have a baby. Ukraine was a primary destination until Russia invaded the country in February 2022. Shortly after the invasion, Jornal de Notícias reported that 100 Portuguese couples had already paid for a Ukrainian surrogate mother and didn’t know what would happen to the children after birth. Ukrainian surrogates usually receive $16,000-22,000 (€15,000-20,000). According to an article in Expresso, Portuguese families are now going to places like Georgia, where the process costs more – $27,000-65,000 (€25,000-60,000) – of which the biological mother receives about $13,000 (€12,000).

Canada is open to foreigners but prohibits intermediaries

Canada also has laws allowing altruistic surrogacy and explicitly forbids paying a surrogate mother. Reimbursement of pregnancy-related expenses such as clothing, vitamins, food and transportation to medical appointments is permitted. The surrogate mother must be at least 21 and have given birth at least once. Heterosexual and homosexual couples, as well as single men and women, have access to the process.

Surrogacy brokering and advertising for profit are prohibited, so the process gets complicated for foreigners to enter into surrogacy agreements in Canada. An initiative by parliamentarian Anthony Housefather sought to decriminalize these practices, but it was not voted on in the last legislative session. Housefather believes women should have the right to make their own decisions on the issue. However, the Canadian Advisory Council on the Status of Women and other organizations have opposed the “commodification of bodies.” Surrogacy agreements have legal standing in every Canadian province except Quebec. Canada does not collect official data on babies born through surrogacy arrangements.

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