Surrogate bellies are not legal in Spain (legislation defines them as a form of “violence against women”. The case of Ana Obregón, who has presented herself as the mother of a girl gestated through this practice in the United States, has, however, stirred up the debate again, with two parties, the PP (in a less emphatic way) and Ciudadanos raising the possibility that this figure is allowed when it is carried out altruistically.
The surrogate mother can withdraw consent in the UK
The Law Commission of England and Wales, the body derived from Parliament that for almost 60 years has reviewed British legislation and proposed reforms and updates, and its Scottish equivalent, have published this week a draft to renew the figure of surrogate mothers with the objective of establishing what they have defined as a “safe route” for the process. The British Government must now decide whether to promote it through parliamentary process.
The route is already legal, but the regulation is more reactive than guaranteeing. The agreements between the parties do not have direct legal force, that is, their compliance cannot be claimed before a judge. The legal maternity of the newborn corresponds to the biological mother, and only through a long adoption process is the process completed. The biological mother can also claim her maternity in a family court at any time.
The process must maintain its altruistic status at all times, but there is no legal limit when it comes to agreeing on expenses, they do not have to be reduced to the necessary minimum, and judges can expand them. Yes, it is expressly prohibited that there are intermediaries who benefit.
The new legal proposal provides that would-be parents obtain legal guardianship of the baby from the moment of birth. The biological mother may continue to withdraw her consent without a time limit, but the judges may dismiss said claim if they consider that it could be detrimental to the minor. The number of medical check-ups, the verification of criminal records and the offer of psychological and legal advice to contracting parties is increased.
“The new regulation will provide greater legal certainty, transparency and protection against potential exploitation, and will create an effective regime that puts the interests of the child at its center,” said Nick Hopkins, Commissioner for Family Law at the Law Commission. The proposal contemplates that non-profit agencies (controlled by an official body) can supervise surrogacy relationships. And the creation of a registry that provides transparency and allows those born to trace their origins after reaching the age of majority.
The rule proposal contemplates clearer rules regarding payments. Those related to the well-being and medical care of the biological mother and the baby are allowed; those that compensate losses caused; pregnancy support expenses and travel. But “compensatory expenses” and the payment of ordinary expenses (house rent, food…) are prohibited.
The objective, affirms the commission that has drafted the proposal, is to make, without losing its altruistic nature, “domestic surrogacy agreements [within the United Kingdom] more attractive” than the option of contracting a surrogate mother in another country.
Support from the left in Portugal
On January 1st, 2022, the law that allows women with physical problems that prevent them from developing their own pregnancy to resort to surrogacy, which excludes men, came into force in Portugal. The norm, which is pending its development in a regulation, includes the right to repentance of pregnant mothers for 20 days and does not allow economic considerations for the pregnancy, with the exception of health expenses.
In contrast to Spain, where the left shares the feminist vision against the use of women’s bodies to conceive on demand, all the parties of the Portuguese left, except the Portuguese Communist Party, supported the law of aluguer bellies. Of the bench on the right, only the Liberal Initiative supported it.
The biological mother’s right to rectification was not initially in the original law and was incorporated after a long parliamentary and legal journey, which included the veto of the President of the Republic, Marcelo Rebelo de Sousa, and a Constitutional Court ruling that annulled several articles of the version approved in 2017. In total, there have been four reforms of the law up to the one approved at the end of 2021.
Despite the fact that the political and legal path of the norm is now clear, in practice no one has yet been able to use it in Portugal due to the delay in drafting the regulation that will have to determine crucial aspects such as whether lesbian couples or single mothers have right to use it.
The Portuguese law establishes that “the holding of surrogate pregnancy legal transactions is only admissible exceptionally and free of charge in cases of absence of the uterus, injury or disease of this organ or any other clinical situation that prevents absolute and definitive pregnancy of the woman. The National Council for Medically Assisted Procreation supervises the entire process between both parties. Biological mothers also have the right to psychological assistance before and after childbirth.
As the Portuguese law cannot be applied until it is developed in a regulation, some couples have traveled to other countries to have a baby. Ukraine was one of the main destinations until the invasion of the country in February 2022. Shortly after the start of the war, the Jornal de Notícias reported a hundred Portuguese couples who had already paid for a surrogate and were unaware of what could happen to minors when they are born. Ukrainian women who offered to have a child for other people received between 15,000 and 20,000 euros, but the invasion has displaced Portuguese families to other places such as Georgia, where the cost of the process ranges between 25,000 and 60,000 euros (of which the biological mother receives about 12,000 euros), according to an article in the weekly Expresso.
Open to foreigners, but brokering prohibited, in Canada
In the case of Canada, the practice of surrogacy is also based —at least legally— on an altruistic nature. The Canadian law on assisted protection indicates that it is prohibited to pay a surrogate mother. However, reimbursement for pregnancy-related expenses such as clothing, vitamins, additional food, and transportation to medical appointments is allowed. The carrier mother must be at least 21 years old and must have had a child before. Both heterosexual and homosexual couples, as well as single men and women, have access to the process.
Brokerage and advertising for profit are also prohibited. For this reason, although the process is also open to foreign citizens, the procedures are complicated. An initiative by Liberal deputy Anthony Housefather sought to open the door to generally decriminalize these practices, but it was not voted on in the last legislature. For Housefather, women should have the right to make their own decisions on the subject. However, the Council for the Status of Women and other organizations expressed their position against a “commodification of bodies.” Unlike the other provinces, surrogacy agreements have no legal force in Quebec. Canada does not collect official data on babies born through these kinds of arrangements.
