Ask the Surrogacy Experts

“Based on some Web reading, surrogacy laws in Canada seem to be the most secure outside of the US (and the US is too expensive for us). We considered Ukraine, but we’re nervous about being stuck in a country where there is no supporting law. Do you have any recommendations?”
— Michael

 

Good morning Michael.

I’m not sure where you’ve been reading… but you should know that Ukraine has far more favorable and secure surrogacy laws than almost every other country. There are multiple explicit statues at the federal level that support surrogacy and surrogacy contracts in Ukraine. Canada is regulated only at the state level and the laws are vague and nebulously applied. (They’re also about to change — more on that below.)

The big difference between the two countries is that Canada only permits altruistic surrogacy, so surrogates are not supposed to be paid more than out-of-pocket expenses. Clinics are also not allowed to offer agency-type services, and professional agencies are illegal under the ban on commercial services. Surrogacy in Canada has grown steadily because clinics routinely create agency-type services that defy the law (and several “agencies” have been raided and/or shut down for crossing that line).

Have you ever heard of Surrogacy in the UK? Probably not, because it’s basically non-existent for foreigners. The laws in the UK make it so difficult to find, manage and compensate your surrogate, that agencies basically can’t exist there. Well, Canada has the same laws as the UK – but agencies thrive because they ignore the law or find creative ways to sidestep it.

Well, the enforcement of altruism restrictions in Canada is about to change, and we anticipate major disruption among Canadian clinics and agencies. Starting in 2020, surrogates will only be reimbursed for out-of-pocket expenses for which they can show a paper receipt (and even those are limited to a specific list). That will eliminate most of the loopholes agencies use. The result is that Canada is going to become a lot more like the UK in the way it handles surrogacy agreements.

The upcoming changes in Canada’s enforcement is why I don’t currently offer a program in Canada (although I have in the past). But Canada also lags behind other countries in its handling of parental rights for the Intended Parents.

Canada has no law that provides for the Intended Parents names to be placed on the birth certificate at the time of the birth. So when the baby is born the Surrogate is listed on the birth certificate as the legal mother.

Now to be honest, changing the birth certificate is pretty easy and it takes only 2 or 3 weeks. But the surrogate’s name is removed only after a court process that must be done AFTER the baby is born. When you compare apples-to-apples, there are other countries that have much more solid laws regarding the Intended Parents rights.

One of those countries is Ukraine. In Ukraine the surrogate never has any parental rights — neither at birth nor even during the pregnancy. By explicit statute, the Intended Parents are the legal parents of the fetus from the moment of conception. Unlike in Canada, they are considered the parents even during the pregnancy.

Also, Kiev has explicit support within the Family Code of Ukraine — actual laws that govern the surrogacy agreement and uphold its terms. There are also multiple orders by the Health Ministry that govern the surrogacy arrangement and ensure the Intended Parents’ rights are protected. The laws support commercial surrogacy (not just altruistic), so surrogates can get paid a decent wage, and they can be supported by professional service providers.

Bot that Ukraine is a surrogacy paradise. The supportive legislation has given rise a lucrative industry providing surrogacy services for international couples. That industry has had its share of scandals (as have all countries where surrogacy has become popular). The most recent was the Biotexcom agency, which was found guilty of falsifying DNA records to allow foreign couples to take custody of babies that were not related to them in any way. Such scandals don’t make Ukraine unsafe, but it does man that Intended Parents should take some added time when looking at which agency to work with. (I write a post about that here.)

For more info, you should always refer parents to the Sensible Guide:
www.SensibleSurrogacy.com/Surrogacy-in-Ukraine/#surrogacy-ukraine-legal
www.SensibleSurrogacy.com/Surrogacy-in-Canada/#legal-surrogacy-canada

I hope this helps.
— Bill

 

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