Policy and practice recommendations to safeguard all parties.
Recommended Principles and Standards for Engaging in International Commercial Surrogacy Arrangements
These principles and standards were developed by Surrogacy360 based on the work and input of researchers and advocates around the world in the fields of women’s health, reproductive rights and justice, LGBTQ+ rights, disability rights, and bioethics. We welcome input, particularly from people with lived experience as surrogates, intended parents, egg donors, and individuals born through surrogacy.
Introduction
In this document, Surrogacy360 outlines recommended principles and standards for cross-border surrogacy arrangements [1]. Many can also be applied in domestic settings (where all parties are in the same country). Our intention is to provide guidance for surrogacy clinics, providers, intermediaries, researchers, and policy makers working to improve conditions for international surrogacy. We hope it will also be an advocacy resource for individuals contemplating surrogacy arrangements as an intended parent, surrogate, or egg donor.
Perspectives about cross-border surrogacy vary widely. Some advocates for women’s health and reproductive rights believe that the ethical challenges of international surrogacy are too significant to overcome, and that such arrangements should not be permitted at all. Others think international surrogacy should be accessible but regulated by governments and overseen by appropriate bodies. Surrogacy360 aims to highlight the complex challenges posed by international surrogacy and to provide guidance for policy and practice.
Intended parents (IPs) who decide to enter into international surrogacy arrangements face many difficulties. Depending on the countries involved, these may include high costs, discriminatory laws (such as restrictions on surrogacy for LGBTQ+ or single people), and inadequate information about the laws and policies (or lack thereof) related to surrogacy. Challenges may also involve dependence on local agencies and other intermediaries to carry out the arrangement, and barriers to direct communication with surrogates.
It is important to acknowledge that IPs typically have more power than surrogates and egg donors in cross-border arrangements, particularly when surrogates and egg donors live in countries with inadequate regulation and oversight. IPs generally have greater economic security and access to social and other resources. Some surrogates and egg donors have expressed that their health, well-being, and rights were not primary considerations in the surrogacy and egg donation processes, and that they did not have the ability to advocate on their own behalf. These issues must be addressed by policy makers, clinics, and agencies.
Under current conditions, however, IPs may have the opportunity to play a vital role in influencing the terms of a contract as well as conditions on the ground for surrogates and egg donors in the country where IPs are pursuing surrogacy. IPs can be important agents of change in bringing improved practices to the field of assisted reproduction.
Taking Action
Once IPs decide to enter into an international arrangement, they can look for an agency, clinic, and lawyer who operate according to the principles outlined here and will work with them to develop surrogacy and egg donation contracts that meet the standards discussed in this document.
By definition, IPs and surrogates in international arrangements live in different locations. This often makes it difficult to know whether the surrogacy agreement IPs have made is being implemented. The best way to ensure that the contract or agreement is followed is to communicate with the surrogate. While clinics and agencies in some countries may discourage direct contact with surrogates, anecdotal reports show that physicians, clinics, and agencies often agree to contact between parties when pressed.
[1] These principles and standards apply to both compensated and uncompensated (also known as “altruistic”) surrogacy arrangements, except where noted. In jurisdictions where only uncompensated arrangements are legal, reimbursement is limited to surrogacy-related expenses.
PRINCIPLES AND STANDARDS
In order to ensure the health, well-being, and rights of each party involved in surrogacy arrangements – children born through surrogacy, surrogates, intended parents, and egg donors (if involved) [2] – the following principles should guide the development of regulation and oversight of cross-border surrogacy and be reflected (where possible) in individual surrogacy arrangements.
Principles
1. International surrogacy arrangements must be approached from an equity perspective; this requires acknowledging and addressing differences in power and privilege between intended parents and surrogates. Both surrogates and intended parents must have the opportunity to shape the terms of the arrangement and the contract.
2. Surrogates must maintain all rights to self-determination and decision-making over themselves and their pregnancies.
3. Surrogates must be guaranteed legal rights, medical protocols that prioritize their health, and conditions that do not compromise their physical or mental well-being during their medical treatments, pregnancies, and post-partum period.
4. Egg donors must be able to maintain all rights to self-determination and decision making during the egg donation process.
5. Egg donors must be guaranteed legal rights as well as medical protocols that prioritize their health and do not compromise their physical or mental well-being during the entire egg donation process.
6. The rights of individuals and couples whose status as parents may be vulnerable—due to inadequate protections regarding sex, sexual orientation, gender identity, marital status, ability, or religion in their home country or country of the surrogacy arrangement—must be respected and guaranteed.
7. Legal parentage must not be predicated on a genetic connection to the child born through surrogacy.
8. Intended parents should not enter into surrogacy agreements in countries where surrogacy is prohibited; doing so may lead to uncertainty regarding the citizenship and legal parentage of the child born through the process and the possibility that surrogates would be held criminally accountable.
9. Children born through surrogacy must be guaranteed citizenship in the country in which they will reside after birth.
10. People born through surrogacy must be guaranteed the right to knowledge of their gestational and genetic origins.
11. Intended parents must agree to parent and take financial responsibility for any children born through their surrogacy arrangements regardless of number, sex, genetic condition, or physical or mental ability.
12. Contact between intended parents and surrogates should be allowed and encouraged to recognize the humanity and integrity of the surrogate’s role and to provide intended parents with any necessary information about her health, well-being, and conditions.
Standards
The standards provide a roadmap to put the principles into practice.
Rights of Surrogates
Meaningful informed consent before agreeing to a surrogacy arrangement
1. The surrogate must be provided full and accurate medical information by agencies, clinics, and health providers about all aspects of embryo transfer, pregnancy, and delivery. Such information must cover risks for short- and long-term complications and health outcomes; details of the arrangement, and the full contract, written in her primary language; and an oral explanation of the risks, details, and the contract in that language.
2. The surrogate’s full understanding of all aspects of the contract must be ensured, and her agreement and signature must be secured without coercion.
Contract provisions
3. The surrogate must have the right to make all health and welfare decisions regarding herself and her pregnancy, including the decision about whether to retain or reduce the number of fetuses and whether and when to terminate or continue a pregnancy. She must be guaranteed freedom of movement and unrestricted access to her family and community for the duration of the surrogacy arrangement.
4. In keeping with accepted standards for best medical practice, clinics must conduct single embryo transfer unless there are exceptional circumstances and then only with additional counseling and consent of the surrogate and intended parents.
5. The surrogate must not be required to undergo a medically unnecessary cesarean section, which has well-recognized attendant risks.
6. In compensated arrangements, the surrogate should be guaranteed a compensation schedule that provides for payment throughout the pregnancy (rather than a bulk payment after the child is born). The surrogate must be compensated regardless of the outcome of the pregnancy (e.g., miscarriage, stillbirth, or termination) and regardless of the sex, genetic condition, or physical or mental ability of the child. Schedules for compensation—and for reimbursement of expenses—must be clearly stated in the contract.
7. In compensated arrangements, an independent escrow account must be set up to guarantee timely payments to the surrogate and to ensure that financial arrangements are completed as agreed upon (e.g., to guarantee payment if intermediaries go out of business).
8. The intended parents must pay for independent legal representation for the surrogate throughout the process of developing the surrogacy contract and for the duration of the contract by an attorney of her choosing. Payment should be made via the independent escrow account to preclude intended parents’ influence over legal counsel.
9. The intended parents must pay for the surrogate’s medical care by health professionals of her choosing, whether through a health insurance policy or direct payments to care providers—whichever is the best method to access comprehensive care in the country or context in which the surrogate is residing. Medical care must include preconception care, prenatal care, post-partum care, medical treatments, hospitalization, and access to mental health counseling if the surrogate desires. Coverage/care should begin by the time the surrogate takes any medication related to pregnancy or undergoes embryo transfer and extend throughout the duration of the pregnancy and for twelve months after pregnancy ends. If health insurance is used, she should be reimbursed for premiums, co-payments, deductibles, and any other out-of-pocket medical costs associated with the pre-pregnancy, pregnancy, and post-partum periods.
10. Where available, a surrogate should be provided with a disability insurance policy to be paid for by the intended parents that takes effect before she takes any medication or begins any treatment related to embryo transfer and extends throughout the duration of the pregnancy and for twelve months after pregnancy ends.
11. A surrogate should be provided with a life insurance policy to be paid for by the intended parents that takes effect before she takes any medication or begins any treatment related to embryo transfer and extends throughout the duration of the pregnancy and for twelve months after the pregnancy ends, with a beneficiary or beneficiaries of her choosing.
12. Contact must be allowed between the intended parents and the surrogate before, during, and after her pregnancy.
Rights of Egg Donors
13. The egg donor must be given full and accurate medical information by agencies, clinics, and health providers about all aspects of the egg retrieval process, including possible stimulation protocols and associated risks and benefits, surgical removal of eggs, and known short- and long-term risks. They should also be informed that there is currently insufficient research with egg donors to determine the long-term effects of hormonal stimulation and surgical egg retrieval.
14. Clinics must not overstimulate the egg donor to produce more eggs. In cases where there is a risk or instance of overstimulation, the process should be canceled due to increased risk of complications.
15. Clinics should not engage in “shared cycles” where eggs are split between two or more sets of intended parents because this can incentivize clinics to overstimulate an egg donor in an effort to produce more eggs.
16. Agencies and clinics should not conduct egg retrieval with an egg donor who has experienced ovarian hyperstimulation syndrome (OHSS), has a history of polycystic ovarian syndrome (PCOS) or endometriosis, has undergone egg retrieval cycles within the last three months, or who has completed six cycles or more in her lifetime.
17. The egg donor must be provided with access to medical care paid for by intended parents or the clinic or agency—whether through a health insurance policy or direct payments to care providers—that covers any medical costs, including hospitalization and/or follow-up care, related to the hormonal stimulation and egg retrieval process. Clinics must monitor egg donors throughout the process and should conduct at least one follow-up visit after retrieval so that any complications or adverse outcomes can be addressed.
18. The egg donor must be provided with legal representation throughout the process of developing the egg donation contract and for the duration of the contract, independent of and paid for by the intended parents.
19. If an egg donor will receive compensation for the arrangement, a schedule of compensation must be contractually agreed upon. The egg donor must be compensated according to the schedule regardless of the number of eggs retrieved, or whether the retrieval process is canceled.
20. Egg donors must be able to withdraw consent and discontinue participation without incurring financial consequences.
Rights of Intended Parents
21. Policies, standards, practices, and protections related to international surrogacy arrangements must apply equally without regard to sex, gender identity, sexual orientation, marital status, ability, or religion of the intended parents.
22. Non-genetic intended parents must not be denied legal recognition of parentage. This is a particular vulnerability for same-sex, transgender, or gender expansive individuals or couples.
23. Prior to entering into a surrogacy contract, the intended parents must have access to up-to-date, accurate information about: surrogacy laws in their country of residence regarding judgment of parentage and citizenship of the child; surrogacy and egg donation regulation in the country where the surrogate resides; medical information related to egg donation, in vitro fertilization, and surrogacy; potential legal, medical, and other conflicts that may arise as a result of entering into a surrogacy arrangement; and clarity around all costs.
Rights of People Born Through Surrogacy
24. Decisions regarding medical practices must prioritize the health of the child, for example by only using single embryo transfer and allowing for vaginal birth unless a cesarean section is medically necessary.
25. The citizenship of the child must be guaranteed in the intended parents’ home country or intended country of residence. This means that intended parents should not enter into surrogacy arrangements if surrogacy is illegal in the country in which they or the surrogate reside.
26. The egg donor, sperm donor, and surrogate should agree to identity release when the person born through surrogacy reaches maturity.
[2] Note, the principles and standards do not include a discussion of sperm donors. There are ethical considerations regarding sperm donation, but due to the scope of this work, we have not included them here.
RECOMMENDATIONS GOING FORWARD
Governments have a responsibility to safeguard their residents rather than leaving such important protections to individual arrangements and contracts in this uncharted, constantly changing era of assisted reproduction.
In addition to the standards listed above, standards for national and state regulation and oversight should be established to ensure the health, well-being, and rights of all individuals involved in surrogacy and egg donation arrangements, including—but not limited to—regulation and oversight of surrogacy contracts, fertility clinics, egg brokers, surrogacy agencies, and other intermediaries.
More long-term research is needed regarding the risks of egg retrieval and surrogate pregnancies and the well-being of people born through surrogacy. Documentation, data collection, and research projects will help inform and improve practices and regulation moving forward.