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See, e.g., Nachtigall, R. D. Becker, G. and Wozny, M., “The Effects of Gender-Specific Diagnosis on Men's and Women's Response to Infertility,” Fertility and Sterility 57, no. 1 (1992): 113–121; Deka, P. K. and Sarma, S., “Psychological Aspects of Infertility,” British Journal of Medical Practitioners 3, no. 3 (2010): 32–34; Galhardo, A. et al., “The Impact of Shame and Self-Judgment on Psychopathology in Infertile Patients,” Human Reproduction 26, no. 9 (2011): 2408–2414.Google Scholar

For the purposes of this paper, the woman who gives birth to the child will be referred to as the birth mother or the surrogate mother. The individuals who seek to enter into a surrogacy arrangement in order to become parents will be referred to either as the commissioning parents/mother/father or the intended parents/mother/father.Google Scholar

In the United Kingdom, it is possible to identify families formed through surrogacy as the national General Register Offices maintain Parental Order Registers. There are three GROs: one for Scotland, one for England and Wales, and one for Northern Ireland. In the context of surrogacy arrangements, the initial registration of the child's birth shows the surrogate mother and her husband or consenting partner as the child's parents (unless the husband or partner did not consent to the surrogacy arrangement). The commissioning parents may seek a Parental Order (this is discussed in more detail in section 3), and the birth is then re-registered, showing the commissioning parents as the child's parents. Blyth, E., “Parental Orders and Identity Registration: One Country Three Systems,” Journal of Social Welfare and Family Law 32, no. 4 (2010): 345–52, at 348. See also Golombok, S. et al., “Families Created Through Surrogacy: Mother–Child Relationships and Children's Psychological Adjustment at Age 7,” Developmental Psychology 47, no. 6 (2011): 1579–88, at 1587, noting that their study involved families identified with the assistance of the Office of National Statistics.Google Scholar

One author has estimated surrogacy rates in the U.S., based on data from the CDC and the SART, and suggests that based on CDC data, 481 births resulted from surrogacy arrangements using IVF (i.e., gestational surrogacy) in 2007, but according to SART data, 1395 births resulted from surrogacy arrangements in 2008. Gugucheva, M., Surrogacy in America (Cambridge: Center for Responsible Genetics, 2010): at 10–12, available at <http://www.councilforresponsiblegenetics.org/pagedocuments/kaevej0a1m.pdf> (last visited January 11, 2013). The author notes that both the CDC and SART estimates are likely underestimates (and in the case of the CDC, a significant underestimate, given that it does not include traditional surrogacy arrangements). Id., at 7.Google Scholar

Although one of the organizations involved in surrogacy has said that it “celebrated [its] 600th surrogate birth in 2007”. Childlessness Overcome Through Surrogacy (COTS), available at <http://www.surrogacy.org.uk/About_COTS.htm> (last visited January 11, 2013).+(last+visited+January+11,+2013).>Google Scholar

The Canadian law that would have permitted monitoring and data collection by a national agency has only been partially implemented, and in late 2010, the provisions creating the agency were declared ultra vires Parliament. Reference re Assisted Human Reproduction Act, 2010 SCC 61, [2010] 3 S.C.R. 457. In the course of outlining its budget priorities for 2012/13, the federal government announced that the agency would be wound down. Government of Canada, Budget 2012, available at <http://www.budget.gc.ca/2012/plan/chap5-eng.html#a0> (last visited January 11, 2013). In June 2012, the provisions of the Assisted Human Reproduction Act, S.C. 2004, c. 2 [hereinafter cited as AHR Act] relating to the agency were repealed in omnibus budget legislation. Jobs, Growth and Long-term Prosperity Act, S.C. 2012, c. 19.+(last+visited+January+11,+2013).+In+June+2012,+the+provisions+of+the+Assisted+Human+Reproduction+Act,+S.C.+2004,+c.+2+[hereinafter+cited+as+AHR+Act]+relating+to+the+agency+were+repealed+in+omnibus+budget+legislation.+Jobs,+Growth+and+Long-term+Prosperity+Act,+S.C.+2012,+c.+19.>Google Scholar

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See id., at 1105; Edelman, R. J., “Surrogacy: The Psychological Issues,” Journal of Reproductive and Infant Psychology 22, no. 2 (2004): 123–36, at 127.Google Scholar

The scope of reproductive tourism is largely unknown, although some data are beginning to emerge. See, e.g., Shenfield, F. et al., “Cross Border Reproductive Care in Six European Countries,” Human Reproduction 25, no. 6 (2010): 1361–68. The authors notes that roughly one-third of patients cited more than one reason to seek reproductive health services outside their home jurisdiction, but concluded that legal barriers to treatment at home are a “major factor” in patient decision-making. Id., at 1365–66. See also Pennings, G. et al., “Cross Border Reproductive Care in Belgium,” Human Reproduction 24, no. 12 (2009): 3108–18.CrossRefGoogle Scholar

Laufer-Ukeles, P., “Gestation: Work for Hire or the Essence of Motherhood? A Comparative Legal Analysis,” Duke Journal of Gender Law & Policy 9, no. 1 (2002): 91–134. The same kinds of concerns are relevant in traditional surrogacy arrangements, where the gametes are contributed by the surrogate mother and the intended/commissioning father. U.K. law treats gestational and traditional surrogacy very distinctly in that only gestational surrogacy is subject to regulation by the Human Fertilisation and Embryology Authority. See Horsey, K. and Sheldon, S., “Still Hazy After All These Years: The Law Regulating Surrogacy,” Medical Law Review 20, no. 1 (2012): 67–89.Google Scholar

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Parentage laws will be discussed at greater length below.Google Scholar

See Gugucheva, , supra note 7, at 14–16; these tend to be states in which surrogacy agreements are valid and enforceable (such as Florida and Nevada) or where courts favor enforcement (such as California, Massachusetts, New York).Google Scholar

See Ikemoto, L., “Reproductive Tourism: Equality Concerns in the Global Market for Fertility Services,” Law & Inequality 27, no. 2 (2009): 277–309, at 285.Google Scholar

See, e.g., Smerdon, U. R., “Crossing Bodies, Crossing Borders: International Surrogacy Between the United States and India,” Cumberland Law Review 39, no. 1 (2008): 15–86, at 32–33; Humbyrd, C., “Fair Trade International Surrogacy,” Developing World Bioethics 9, no. 3 (2009): 111–18; Whittaker, A., “Cross-border Assisted Reproduction Care in Asia: Implications for Access, Equity and Regulations,” Reproductive Health Matters 19, no. 37 (2011): 107–16. Costs include the fee to be paid to the surrogate/gestational carrier, as well as professional expenses (legal advice, counseling), health care costs for the surrogate, IVF or artificial insemination (AI) costs, costs of health and life insurance for the surrogate, and agency fees (and other fees related to finding a woman to act as a surrogate for intended parents).Google Scholar

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See, e.g., Krawiec, K. D., “Altrusim and Intermediation in the Market for Babies,” Washington and Lee Law Review 66, no. 1 (2009): 203–57.Google Scholar

Constitution Act, 1867, 30 & 31 Victoria, c. 3 (U.K.), s. 91(27) (criminal law) and ss. 92(12), (13) (solemnization of marriage, property and civil rights in the province).Google Scholar

AHR Act, supra note 9, at s. 6: 6. (1) No person shall pay consideration to a female person to be a surrogate mother, offer to pay such consideration or advertise that it will be paid. (2) No person shall accept consideration for arranging for the services of a surrogate mother, offer to make such an arrangement for consideration or advertise the arranging of such services. (3) No person shall pay consideration to another person to arrange for the services of a surrogate mother, offer to pay such consideration or advertise the payment of it. (4) No person shall counsel or induce a female person to become a surrogate mother, or perform any medical procedure to assist a female person to become a surrogate mother, knowing or having reason to believe that the female person is under 21 years of age. (5) This section does not affect the validity under provincial law of any agreement under which a person agrees to be a surrogate mother.Google Scholar

Civil Code of Quebec, R.S.Q., c. C-1991, art. 541.Google Scholar

Family Law Act, S.A. 2003, c. F-4.5, s. 8.2(8) [hereinafter cited as Family Law Act (Alberta)]. The Act also says that the agreement cannot satisfy the consent requirement for purposes of the declaration of parentage. Id.Google Scholar

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AHR Act, supra note 9, at s. 12 (as amended by the Jobs, Growth and Long-Term Prosperity Act, supra note 9, at s. 719): 12. (1) No person shall, except in accordance with the regulations, (a) reimburse a donor for an expenditure incurred in the course of donating sperm or an ovum; (b) reimburse any person for an expenditure incurred in the maintenance or transport of an in vitro embryo; or (c) reimburse a surrogate mother for an expenditure incurred by her in relation to her surrogacy. (2) No person shall reimburse an expenditure referred to in subsection (1) unless a receipt is provided to that person for the expenditure. (3) No person shall reimburse a surrogate mother for a loss of work-related income incurred during her pregnancy, unless (a) a qualified medical practitioner certifies, in writing, that continuing to work may pose a risk to her health or that of the embryo or foetus; and (b) the reimbursement is made in accordance with the regulations.Google Scholar

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Vital Statistics Act, C.C.S.M., c. V60, s. 3(6): 3(6) The birth registration of a child born to a woman as a result of artificial insemination, whether born before or after the coming into force of this subsection, shall be completed (a) showing, with the written consent of the woman and her spouse or common-law partner in an approved form, the particulars of the spouse or common-law partner as those of the father or other parent of the child; and (b) in accordance with the regulations.Google Scholar

This was explained by a Manitoba lawyer in a workshop I attended in Winnipeg, Manitoba in February 2012. The workshop, titled “New approaches to assisted human reproduction in Canada” was hosted by the University of Manitoba's Centre for Human Rights Research and the Canadian Journal of Women and the Law/Revue femmes et droit, with additional financial assistance from the Legal Research Institute. See <http://chrr.info/reproductive-and-sexual-rights> (last visited January 11, 2013). (last visited January 11, 2013).' href=https://scholar.google.com/scholar?q=This+was+explained+by+a+Manitoba+lawyer+in+a+workshop+I+attended+in+Winnipeg,+Manitoba+in+February+2012.+The+workshop,+titled+“New+approaches+to+assisted+human+reproduction+in+Canada”+was+hosted+by+the+University+of+Manitoba's+Centre+for+Human+Rights+Research+and+the+Canadian+Journal+of+Women+and+the+Law/Revue+femmes+et+droit,+with+additional+financial+assistance+from+the+Legal+Research+Institute.+See++(last+visited+January+11,+2013).>Google Scholar

Child Status Act, R.S.P.E.I. 1988, c. C-6, s. 9: 9(5) In the case of birth by assisted conception, a person is presumed to be the parent of a child if the person was, at the time the mother is inseminated, the spouse of, or cohabiting in a conjugal relationship with, the mother unless (a) the person did not consent in advance to the assisted conception and did not demonstrate a settled intention to treat the child as the person's child; or (b) the person did not know that the child was born by assisted conception. (6) A person who donates the semen or ovum used in the assisted conception of a child is not, by that reason alone, a parent of the child. (7) A woman who gives birth to a child is deemed to be the mother of the child, whether the woman is or is not the genetic mother of the child. Similar provisions are found in the Yukon Territory and in Newfoundland and Labrador. Children's Law Act, R.S.N.L. 1990, c. C-13, s. 12; Children's Act, R.S.Y. 2002, c. 31, s. 13.Google Scholar

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Id., at s. 7(2).Google Scholar

Id., at s. 8.1(2).Google Scholar

Id., at s. 7(4).Google Scholar

Id., at s. 7(5).Google Scholar

Id., at s. 8.2.Google Scholar

Id., at s. 8.1(2).Google Scholar

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Id., at s. 8.1(3). Thus, where a woman provides an ovum or embryo for her own reproductive use and bears the child herself, her partner or spouse is the other parent. If the birth mother is a surrogate and is declared not to be a parent, then the embryo or egg provider and partner are the parents.Google Scholar

Id., at s. 8.2(6).Google Scholar

Id., at s 8.1(4)(c).Google Scholar

Id., at 8.1(2)(b)(ii) or 8.1(3)(b)(ii).Google Scholar

Id., at s. 8.2(12)(b).Google Scholar

Family Law Act (BC), supra note 26, at ss. 27, 29, 31.Google Scholar

Id., at s. 27.Google Scholar

Id., at s. 29.Google Scholar

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Id., at s. 30.Google Scholar

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Id., at ss. 35 (Canadian orders), 36 (non-Canadian orders). If a Canadian order is in place, the court must recognize it (unless new evidence is in play that was not available during the out-of-BC proceeding, or unless the court is satisfied that the order was obtained under fraud or duress). If a non-Canadian order is in place, the court must recognize it if at least one of the parents was habitually resident in, or had a real and substantial connection with, the foreign jurisdiction. As to refusing to recognize the foreign order, the same rules apply except that the court can also refuse to recognize the foreign order if it is of the view that the order is contrary to public policy. Alberta's legislation does not specify how extra-provincial or foreign orders are to be handled.Google Scholar

Surrogacy Arrangements Act 1985 (U.K.).Google Scholar

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Horsey, and Sheldon, , supra note 13.Google Scholar

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HFE Act, supra note 53, at ss. 33, 35–37. In other words, if donor gametes are used, the donor is not the parent; the birth mother and her partner are the parents.Google Scholar

This route to fatherhood exists by virtue of ss. 35–37 of the HFE Act. Id. The idea is that the intended father and the surrogate mother received “treatment together”. Horsey, and Sheldon, , supra note 13. Horsey and Sheldon note that the law may have the effect of encouraging the demand for unmarried women as surrogates.Google Scholar

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This is discussed in more detail in section 4 (pages 9–10), below.Google Scholar

As this condition is mandatory, the U.K. courts have no discretion to modify the timeline. This could potentially become an impediment where, due to conflicting legal rules, immigration concerns and inaccurate legal advice, the application cannot be made in a timely fashion.Google Scholar

One of the difficulties with the requirement for consent of the birth mother's spouse or partner arises where the couple are estranged. See Re G (Surrogacy: Foreign Domicile) [2007] E.W.H.C. 2814 (Fam.): at paras 30–39.Google Scholar

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In 2009, the Australian Standing Committee of Attorneys-General (SCAG; now the Standing Council on Law and Justice) sought to create some momentum in favor of harmonizing surrogacy laws across Australia. Standing Committee of Attorneys-General Australian Health Ministers' Conference, Community And Disability Services Ministers' Conference: Joint Working Group, A Proposal For A National Model To Harmonise Regulation of Surrogacy (January 2009), available at <http://www.scag.gov.au/lawlink/SCAG/ll_scag.nsf/pages/scag_pastconsultations> (last visited January 11, 2013). The stated policy objective of the consultation on surrogacy laws was “to permit the intended parents to become recognised throughout Australia as the legal parents of the child in place of the birth parent(s).” Id., at 2. Another concern in Australia was the high frequency of reproductive tourism within the country. As many states banned both commercial and altruistic surrogacy, the only option for some intended parents was to leave their home state for surrogacy services. Stuhmcke, A., “The Criminal Act of Commercial Surrogacy in Australia: A Call for Review,” Journal of Law and Medicine 18, no. 3 (2011): 601–13, at 607. Until 2007, for example, N.S.W. was a “destination” for surrogacy tourism in Australia. Johnson, T., “Queensland's Proposed Surrogacy Legislation: An Opportunity for National Reform,” Journal of Law and Medicine 17, no. 4 (2010): 617–32, at 618.Google Scholar

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Surrogacy Act 2010 (Qld.), s. 54 [hereinafter cited as Surrogacy Act (Qld.)].Google Scholar

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See, e.g., Australian Capital Territory (id., at s. 31); New South Wales (Surrogacy Act (N.S.W.), supra note 65, at s. 6) (although the obligation to pay or reimburse surrogacy costs is enforceable); Victoria (Assisted Reproductive Treatment Act 2008 (Vic.), s. 44(3)) (“To the extent that a surrogacy arrangement provides for a matter other than the reimbursement for costs actually incurred by the surrogate mother the arrangement is void and unenforceable”).Google Scholar

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See, e.g., Parentage Act, supra note 67, at s. 7; Surrogacy Act (Qld.), supra note 66, at s. 8; Status of Children Act 1996 (N.S.W.), s. 14 (dealing with parentage in the case of assisted reproduction); Status of Children Act 1978 (Qld.), ss. 17–19.Google Scholar

See, e.g., Parentage Act, supra note 67, at s. 26; Surrogacy Act (N.S.W.), supra note 65, at s. 12; Surrogacy Act (Qld.), supra note 66, at s. 21; Status of Children Act 1974 (Vic.), s. 20 [hereinafter cited as Status of Children Act (Vic.)]; Family Relationships Act 1975 (S.A.), s. 10HB; Surrogacy Act 2008 (W.A.), s. 19.Google Scholar

Note that Victorian legislation defines what a surrogate mother can be reimbursed for as follows: medical expenses associated with pregnancy and birth, costs of legal advice and counseling, and travel expenses incurred in relation to the pregnancy or birth. Assisted Reproductive Treatment Regulations 2009 (Vic.), s. 10.Google Scholar

See, e.g., Parentage Act, supra note 67, s. 26; Status of Children Act (Vic.), supra note 71, at ss. 20, 23; Surrogacy Act (N.S.W.), supra note 65, at ss. 21–38; Surrogacy Act (Qld.), supra note 66, at s. 22.Google Scholar

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In the main, the harms referred to relate to the physical risks of pregnancy, and the psychological risks of regret over relinquishing the child. See, e.g., Chesler, P., Sacred Bond: The Legacy of Baby M (New York: Times Books, 1988); Berkhout, S., “Buns in the Oven: Objectification, Surrogacy, and Women's Autonomy,” Social Theory and Practice 34, no. 1 (2008): 95–117; Damelio, J. and Sorensen, K., “Enhancing Autonomy in Paid Surrogacy,” Bioethics 22, no. 5 (2008): 269–77; Tieu, M. M., “Altruistic Surrogacy: The Necessary Objectification of Surrogate Mothers,” Journal of Medical Ethics 35, no. 3 (2009): 171–75. As regards harm to the children born as a result of surrogacy, it has been suggested that children's interests are harmed. Hanna, J. K. M., “Revisiting Child-Based Objections to Commercial Surrogacy,” Bioethics 24, no. 7 (2010): 341–47.Google Scholar

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