As explored in our previous blog, surrogacy is not a new phenomenon. Some people need a helping hand when creating a family, and an increasing number of modern families are created using a surrogate. While some countries including the UK are making really good progress with its regulation to ensure all parties involved throughout the surrogacy process (including the child) are protected, other countries are taking a stronger stance in ensuring its ‘removal’ from society.
In Italy it is illegal to have a baby through the method of surrogacy.
Italy has recently made the shocking announcement that it is illegal for couples to travel abroad to have a baby through the method of surrogacy. It is also illegal to have a baby via surrogacy in the country (this is similar to the position held in other European countries like Germany, Spain and France).
Those who break the law will face up to two years in prison and a fine of up to one million euros.
This decision will have a devastating impact on couples with fertility issues but particularly LGBTQ+ couples as they are also not allowed to adopt or undergo IVF treatment in the country.
Local authorities were also ordered to stop registering same-sex parents’ children.
Those couples who are LGBTQ+ are now being faced with an impossible situation – do they give up on their dream of being parents or move to another country leaving loved ones behind?
What is the law on surrogacy in the UK?
This is a very stark contrast to the law in the UK where surrogacy is regulated by legislation and open to all couples, regardless of gender or sexual orientation, who wish to have a child using a surrogate.
That being said,, it is of course illegal to have a commercial surrogacy arrangement; the intended parents should only pay “reasonable expenses” for the surrogate. Further, there is no mechanism to enforce a surrogacy agreement in the UK so although it is legal, there are no absolute guarantees for the intended parents of becoming “legal parents” of the child after birth.
UK/ Ukraine/ United States of America and Canada
The UK, Ukraine, United States of America and Canada are thought to be world leaders in the area of surrogacy. The main difference between surrogacy in the UK and in Ukraine, the United States of America and in Canada, is that commercial payments are allowed to be made to surrogate mothers.
This has been criticised given that this may result in the surrogate mothers being exploited and it also raises concerns regarding the dangers of treating children like commodities.
Greece
In countries like Greece for example, some progress has been made insofar as surrogacy is legal and therefore couples with fertility issues, or lesbian couples, are able to start a family via surrogacy. The law offers protection to the intended parents with the surrogate having no legal rights over the child. However, the law in Greece requires that there be a woman in the relationship. This means that gay male couples or single men are prohibited from creating a family via surrogacy.
There are obviously huge inconsistencies between countries in relation to the practice of surrogacy as a result of differing cultural and social values which clearly influence government decision-making.
Couples who go abroad for surrogacy
Even with the UK’s stance in relation to surrogacy, there are still a number of couples going abroad to access surrogacy. For many, this is considered “easier” with more relaxed surrogacy laws. However, the process itself is not straightforward and must be carefully considered prior to leaving the UK in order to minimise any difficulties when re-entering the UK once the child is born (for example, securing British nationality for the child). It is therefore advisable to seek legal advice from the very beginning of the process.
The Family Law team at BTO Solicitors specialise in Fertility Law and regularly support couples, including LGBTQ+ couples, with their surrogacy journey from the beginning to the end (even if travelling abroad).
Please reach out to us if this is something you wish to seek advice in relation to, or even just to have an initial conversation to understand the law surrounding surrogacy in the UK if this is something that you are considering. We are here to help and offer FREE initial advice via fertilitylaw@bto.co.uk and you can find out more about our fixed fee packages here.
