Surrogacy remains prohibited in France. But French couples illegally use surrogate mothers abroad. How does surrogacy work? Why is it illegal in France and allowed in other countries? What does the law say? Expert testimonials and opinions. Surrogate mothers are only allowed in countries that have a law that explicitly allows this assisted reproduction technique (ART). By judgment of 13 September 2013 (No. 1092), the Court of Cassation further strengthened its position by placing public order above the interests of the child: « the refusal to transcribe a birth certificate established in a foreign country, drawn up in the forms used in that country, if the birth results, in fraud to French law, collective proceedings involving a surrogacy contract, even if it is lawful abroad, it is null and void under Articles 16-7 and 16-9 of the Civil Code. In cases of fraud or in the best interests of the child guaranteed by Article 3(1) of the International Convention on the Rights of the Child, respect for private and family life within the meaning of Article 8 of the Convention for the Protection of Human Rights and Fundamental Freedoms cannot usefully be invoked either. In the same judgment, the Court of Cassation confirmed the Court of Appeal on the grounds that it had inferred from fraud against the law the nullity of the recognition of the child by the future father. In the rest of the world, a minority of countries such as Canada, Brazil or India offer a legal framework to regulate surrogacy. In the United States, some states allow it (California, New Hampshire…), others do not (Washington, New York…). However, the judgments of the European Court of Human Rights have prompted the Court of Cassation to revise its case law. For the Court, surrogacy no longer excludes the transcription of the foreign birth certificate, provided that it has been duly established abroad and corresponds to reality. In some countries, such as the United States, Mexico or Australia, the laws surrounding surrogacy differ from state to state.
In Australia, altruistic surrogacy is allowed throughout the country, but access conditions vary depending on location. For example, only Queensland, Tasmania and New South Wales open it to same-sex couples. In Mexico, only four states adopt this practice. Among them, Tabasco and Sinaloa are the only ones to allow it. In Tabasco, heterosexual couples have the right to use a surrogate if done altruistically. The Sinaloa law allows surrogacy for heterosexual couples if the doctor has issued an inability to conceive. In Canada, surrogacy is accessible to everyone except Quebec. The surrogate mother is not paid, but she will still be compensated for all expenses that may arise from the pregnancy (medicines, clothes, holidays …). Finally, the United States is a reference country in terms of surrogacy.
But since each state has its own laws, some prohibit it, others allow it. We often hear about California because commercial surrogacy is allowed for all family models, and there are clinics and organizations that help families in the process. Elsewhere in the world, about fifteen countries allow it, including the United States (depending on the state©), South Africa, Brazil©, Iran, Russia or Thailand. It is important to know the legal requirements of the different countries before starting the treatment to ensure that the conditions are met and that the whole process can be done legally. Before going into the details of each country, we must emphasize once again that it is crucial to conduct the process in a country where there is a surrogacy law or the jurisdiction of the country allows the implementation of surrogacy for foreign citizens. Homosexual couples and single men can only practice surrogacy in five countries: – Russia (finally banned for all foreigners, it is only reflected because it has been a good destination for more than 15 years). – United States – Canada – Mexico – Albania For heterosexual couples, it is necessary to distinguish countries where: To have access to surrogacy, you must be a married couple, – Ukraine – Kazakhstan – Belarus – Georgia (married or in a registered partnership for more than one year or able to justify more than one year together). And countries where it is not necessary to be a married couple to carry out a surrogacy process: – United States – Canada – Greece – Georgia (pacsés or demonstrate more than one year together) We must now move to a second classification of countries, depending on whether or not they set age limits for the surrogacy process. The rule here is simple. Only Greece prescribes a maximum of 52 years for the intended mother (until 2023, or theoretically, it returns to the legal limit of 50 years, which has been temporarily modified due to COVID.19). The date to be taken into account when the age of 50 has not yet reached the age is the date on which the main hearing will take place. If the rest of the program takes place after 50, that`s fine as long as you get to the process at 49 and a half.
Finally, we must take into account an important classification based on whether or not they impose certain medical requirements on us to have access to surrogacy. The authorities of these countries are aware that surrogacy should only be available in case of biological impossibility and not out of a desire not to get pregnant, as was the case with some Hollywood stars who, although they can fall into belts, choose surrogacy so as not to disfigure their figure. We can divide the medical reasons required by countries for surrogacy into 3 large groups: • Serious medical reasons such as loss of uterus, fallopian tubes, ovaries, etc. • Have undergone assisted reproduction technology (ART), with at least 4 stranded embryo transfers. (Whatever the reason). • A proven health risk that endangers the life of the mother or baby. • And early menopause This list is not exhaustive and exclusive, since any other reason proving the impossibility of pregnancy is obviously valid. Consult your case in common with a family assistant at Gestlife. These requirements apply in Greece, Georgia, Kazakhstan, Belarus and Ukraine. Therefore, the countries that do not require it are: • The United States • Canada • Albania • Russia: Russia banned surrogacy for foreign couples on May 24, 2022. We will now take a short tour of all the countries where you can do a surrogacy process and explain their advantages and disadvantages. We will explain later how a surrogacy process works in general and what precautions should be taken.
The current international situation of surrogacy is anything but unanimous. In fact, the principle of surrogacy, sometimes mislabeled by the terms surrogacy, uterine loan or surrogate, is only legal in a few countries in the world. For this reason, many people who need to use this method of assisted reproduction have to go abroad to have a child. In Europe, other countries share the position of the France and prohibit surrogacy such as Germany or Italy. Countries such as Denmark and the Netherlands tolerate surrogacy as long as it does not result in a financial reward. In Belgium, the country is in a legal vacuum; Therefore, the practice is neither prohibited nor regulated: surrogacy is practiced outside a legal text. No binding text on surrogacy has been adopted at the international level. Several European countries, including France, prohibit surrogacy: Germany, Belgium, Spain, Italy, Luxembourg, etc. Other countries, on the other hand, allow the use of surrogate mothers: Denmark, the Netherlands, Russia, Greece, Canada, some American states, India, etc.
Some countries only allow surrogacy if the surrogate does not receive remuneration, i.e. if surrogacy is altruistic. This is the case in Australia, Canada, the United Kingdom, the Netherlands, Cyprus, Denmark, Hungary, Israel and several states in the United States. As there is not a single international legislation regulating surrogacy in the world, below is a list of countries where this practice is allowed and a list of those where it is prohibited. On 2 August 2021, the Bioethics Act was developed. One of the most important changes is access to ART for all women. However, no changes have been decided regarding surrogacy. In fact, it is still banned in France. Some couples go abroad to use surrogate mothers. Recently, this was the case of TV host Christophe Beaugrand, who traveled to the United States and tells his story in his book « Son to Daddy ».
