Changing Surrogacy Options for Gay Men Around the Globe (September 2015)

Sam Everingham is a Sydney-based author, researcher and founder of the non-profit consumer organization Families Through Surrogacy, which hosts best-practice conferences each year in the United States, United Kingdom, Europe and Australia. Sam is an authority on the surrogacy landscape internationally, how intended parents try to make their dreams of becoming parents come true, what can go wrong and how to prevent problems. His commentary is regularly sought by regulators and news outlets around the world including CNN, BBC, The Wall Street Journal, The Daily Beast and ABC. Note: This article was originally published in August 2014; below is an updated version from September 2015.

I'm the proud dad of girls Zoe and Ruby, born via gestational surrogacy* in India over four years ago when India was still an option for gay couples.

I never thought that my own desire to be a parent would turn into a significant part of my life's work. But so goes the journey: One couple's struggle becomes the pathway for those who follow. And this is how Families Through Surrogacy (FTS) came about.

My partner and I struck a range of unforeseen obstacles and crises in our path to parenthood in India. As hundreds of intended parents (IPs) around the world started visiting the blog we started in July 2010, it soon become clear that there were thousands of singles and couples who were turning to surrogacy and immersed in tough journeys whether at home or abroad without much support or reliable information.

FTS quickly expanded from a website to hosting multiple social media forums and then best-practice conferences run by volunteer parents who were interested in helping others.

Please bear in mind that for every positive surrogacy story on sites like this, there is a journey which does not go to plan, causing much pain and anguish for all parties. As future and existing gay male parents, it is in our interests to be completely informed about the risks to ourselves as well as those of our children and surrogate mothers.

The recent case of baby Carmen and her gay parents trapped in Thailand because their surrogate changed her mind highlights the need to understand the law (or absence of it) in the country you choose for your surrogacy as well as the importance of 'owning' the process from the outset.

  • Always insist on meeting your gestational surrogate prior to commencing an arrangement. While this can be logistically and linguistically difficult for some, a good agency can arrange Skype-based meetings and translators. If they refuse, don't work with them.
  • Be upfront about being gay. Ensure your surrogate understands you are a gay man or couple before she agrees to work with you.
  • Consider working with a surrogate and egg donor who are open to maintaining contact post birth. While this may not be important to you, it may be to your child(ren) as they grow up. For local cultural reasons, egg donors from India are always anonymous, while Australian donors must agree to be identified.
  • Hire an experienced attorney or advocate in the country you choose for your surrogacy. For example, in Cambodia parental rights are far easier to transfer if your surrogate is unmarried. In the United States, laws vary hugely by state.
  • The availability of surrogacy as a route to parenthood for gay men in seven countries globally is outlined below. Each varies hugely as to the legal protections and rights afforded to surrogates, intended parents and children.

    The United States

    Laws in relation to surrogacy vary hugely from state to state. Approximately 19 states have laws or statutes recognizing compensated (commercial) surrogacy. Another ten have laws recognizing uncompensated (altruistic) surrogacy.

    There are many small and large surrogacy agencies across at least 13 U.S. states that specialize in surrogate recruitment, matching and management. Some of these agencies also offer egg or sperm donors. The experience level of such operators varies widely. Some are ex-surrogates who start their own agency from home; others are multi-state organizations with dozens of staff members and decades of experience. Costs can vary significantly from state to state, so do your homework.

    Some intended U.S. parents can save considerable amounts where they are prepared to put the time and energy into finding a surrogate privately – either through friends and family or via community-based surrogate forums. The problem is, such DIY methods often skip psychological matching and screening processes designed to minimize the chance of later problems.

    U.S. surrogacy options for non-U.S. citizens are plentiful, with many clinics more than willing to meet the needs of offshore clients. Surrogacy agencies in California, Boston, Minnesota and Las Vegas in particular have been assisting foreign parents for many years. A significant number of American IVF clinics allow HIV-positive intended parents. (More information for HIV-positive men wishing to become biological dads can be found in this Gays With Kids article.) What makes the U.S. attractive to foreigners? Legal protections, easy transfer of parentage, and automatic U.S. citizenship for a child born on American soil. On the downside: the high costs of medical care and health insurance, especially if you need to insure a surrogate carrying twins. (As a result, many foreigners forgo insurance entirely and simply hope for the best.) The U.S. is particularly popular with local gay couples as well as with gay couples from Australia, the United Kingdom and mainland Europe.

    Canada

    Canada's laws don't allow surrogates to be paid for carrying a child; only out-of-pocket expenses can be covered. This form of surrogacy called altruistic surrogacy is a model that is also used in Australia and Great Britain. For-profit surrogacy agencies are forbidden. Nonetheless, there are a number of surrogacy facilitators in Canada who work within or around the law. As always be sure to research an agency or individual facilitator before signing on. Canada can be a more cost-effective option than surrogacy in the United States, and many American and British gay men have created families with Canadian surrogates.

    United Kingdom

    Uncompensated (altruistic) surrogacy is accessible to gay couples, including legal transfer of parentage if you are a U.K. citizen and are domiciled in the U.K., Channel Islands or Isle of Man. Compensation of up to £15,000 (approximately US $23,5000) is allowed by the courts, making the UK effectively a commercial system for many. The U.K. provides a lightly regulated process, requiring surrogates and intended parents do little by way of mandatory preparation prior to progressing. Problems include: For-profit surrogacy agencies are illegal so you need to manage the surrogate relationship entirely; paid advertising for surrogates is illegal; and there is no legal protection for intended parents. However, parental orders are available post birth, which transfers full parental status and responsibility from the surrogate to the intended parent.

    Mexico

    As the costs of agencies, attorneys, hospital care and health insurance in the U.S. continue to rise, many IPs are turning to overseas options to fulfill their dreams. Mexico has been allowing uncompensated surrogacy to locals in the state of Tabasco for over a decade; however, after the closing of options for gay men in Southeast Asia, many offshore operators have moved to exploit loopholes that allow surrogacy for foreigners, particularly gay men.

    Mexico's advantages are its affordable medical and legal processes as well as arrangements with Californian IVF clinics to create and implant embryos. (Shipping frozen embryos from abroad for implantation in Mexico is illegal.) In the last 15 months, scores of singles and couples have had children via Mexico. Children born via surrogacy to foreigners are eligible for both a Mexican passport and a passport of their intended parents' home country.

    Like the U.S., laws differ by state and only in the Mexican state of Tabasco is uncompensated surrogacy legal. However, Tabasco's capital Villahermosa has little access to egg donors. Tijuana and Mexico City on the other hand have good access to egg donors, highly experienced IVF physicians and no laws preventing embryo transfer to a surrogate. Surrogates relocate to Tabasco at about the seven-month mark in their pregnancy. There is a shortage of dependable Mexican lawyers in this area.

    Tabasco law protects the rights of intended parents. A gestational surrogate cannot change her mind post birth, as long as she was of sound mind when she signed the gestational agreement. Mexico is a signatory to the 1993 Hague Convention designed to protect children in respect to inter-country adoption and this seems to be delaying granting Mexican passports for children through surrogacy, particularly where a same-sex couple or citizens of a country outlawing surrogacy are involved. Children born via surrogacy are supposed to exit Mexico on a Mexican passport, though given the delays, impatient parents are finding ways to exit using passports of their own country.

    Average total costs for surrogacy in Mexico (using all local resources) range from US $35,000 to US $55,000. (Travel costs are additional.) Mexico accepts gay clients from any country and already is seeing gay singles and couples from the United States, Australia, Europe, Canada and the United Kingdom. The Mexican government is expected to make changes to its relevant laws towards the end of 2015, although it remains unclear whether these changes will open up or restrict surrogacy for foreigners.

    Nepal

    With excellent medical expertise and plentiful surrogates, India had been the affordable destination of choice until restrictive surrogacy visas three years ago banned access to gay singles and couples. As India closed to the gay market, enterprising facilitators from India, Thailand, the United States and Europe rapidly filled the unmet need by opening in Thailand, working with the handful of Thai IVF specialists who would cooperate. Despite a lack of Thai laws governing surrogacy and a birth certificate that retained the surrogate as the legal mother, hundreds of gay couples proceeded. After a little over two years, Thailand too closed its doors to surrogacy not just to gay men, but all foreigners. The frozen embryos of hundreds of gay singles and couples from around the globe face an uncertain future.

    In early 2014, Nepal first appeared as a destination for surrogacy with births to gay men from January; these first surrogates had embryos transferred in India. Experienced Indian clinics have been quick to set up in Kathmandu, the capital of Nepal. Gay Israelis formed the vanguard of intended parents using Nepal. To date over 150 babies have been born to foreigners via surrogacy in Nepal. Despite the recent earthquake, over a dozen facilitators from the United States, Israel, Europe and India now offer surrogacy in Nepal.

    It's important to be aware that only non-Nepalese women can be surrogates; thus far all surrogates have come from India.

    In late August 2015, the Supreme Court of Nepal put a stay on all new embryo transfers for surrogacy, subject to the findings of an enquiry as to why the Nepali government had authorised surrogacy in the absence of relevant law. While it seems likely that Nepal will ultimately pass laws legalising surrogacy, in the interim, there is an open-ended freeze on new arrangements.

    In regard to exit post birth, the American embassy has to date posed few barriers. (DNA testing is now mandatory; already there has been one DNA mis-match.) The Israeli government has been highly supportive of its citizens pursuing surrogacy abroad with exit times of one to two weeks post birth. Australia has taken a much tougher approach to citizenship approval, insisting on interviewing surrogates and checking IDs thoroughly. Exit times have been up to six weeks.

    Cambodia

    In September 2014 neighboring Cambodia opened its first IVF clinic – a state-of-the-art center housing foreign specialists. However, Cambodia has no laws protecting the rights of surrogates or intended parents. When Thailand outlawed surrogacy for all foreigners, the frozen embryos of hundreds of gay singles and couples in Bangkok faced an uncertain future. Many of these precious embryos are now being transferred to Cambodia for surrogacy.

    When I visited in June 2015, already two surrogacy agencies were operational in the Cambodian capital Phnom Penh, with more on the way. The new Royal Phnom Penh Hospital, built for foreigners and with foreign specialists, has been flagged as a preferred birth hospital by some facilitators.

    Surrogacy agencies are painstakingly recruiting local surrogates via word-of-mouth, as advertising is not permitted. In a country where IVF – not to mention surrogacy – is a completely unfamiliar concept, recruitment is slow. It is Chinese intended parents who have been the first to explore surrogacy in this new environment.

    Australia

    In all Australian states except South Australia and Western Australia, uncompensated (altruistic) surrogacy is accessible to gay couples, including legal transfer of parentage. These states provide a highly regulated process, requiring surrogate and intended parent counseling, legal advice and, usually, medical ethics approval prior to progressing. However, there are major problems with regulated Australian surrogacy: Surrogacy agencies are illegal so you need to manage the matching and surrogate relationship entirely; paid advertising for surrogates is illegal; there is a shortage of willing surrogates; only out-of-pocket surrogate expenses can be compensated; and there is no legal protection for intended parents. As a result, most gay Australians pursue surrogacy offshore. However, arguments for policy change to allow compensated surrogacy are gaining political traction.

    The quickly changing global landscape highlights the need for intended parents to be well informed and aware of the risks and how to minimize them in their journeys to create a family. Detailed resources are available here.

    At Families Through Surrogacy's San Francisco conference on September 26-27, 2015, intended patents will hear from a range of parents and professionals on the pros and cons of these diverse pathways to parenthood.

    * In traditional surrogacy, the surrogate's own egg is fertilized using the sperm of the intended father or another sperm donor. In other words, the surrogate is also the egg donor. The surrogate then carries the child to term. In traditional surrogacy, the surrogate is the biological mother of the child. In gestational surrogacy, the surrogate's egg is not used. An embryo is created outside of the body through in vitro fertilization. The egg and sperm may come from the intended parents or from egg and/or sperm donors, depending on circumstances. Once a viable embryo is produced, the embryo is implanted in the surrogate's uterus, and the surrogate carries the child to term. In gestational surrogacy, the surrogate has no biological relationship to the child. Gay men usually choose gestational surrogacy rather than traditional surrogacy as their path to fatherhood.



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