International Surrogacy Update 2017: Not Good, But It Could Always Be Worse
Just remember that numerous other countries are also struggling with similar issues
The surrogacy market is global. Intended parents can live in one country, with their fertility clinics doing business in another, and with the surrogates living in yet another country. We are all connected. But with a patchwork of directly conflicting laws from one jurisdiction to another, it makes for some complicated scenarios. So as you consider how messed up the United States may be for assisted reproductive technology issues (in some states, not all!), just remember that numerous other countries are also struggling with similar issues. So that’s reassuring! Right?
India — U.S. Couples May Get Their Embryos Back. As you may recall from my column back in September, two U.S. couples were caught up in a change in assisted reproductive technology (ART) law in India. Not long ago, India’s ART industry was flourishing with hopeful parents-to-be from across the globe flocking there for high-tech, low-cost fertility help. But then India not only banned foreign citizens from using ART services in India, but it also banned fertility clinics from even releasing foreigners’ embryos for transport to another country. Two U.S. couples in particular fought to move their embryos out of India so they could have a chance to use them to build their family.
Finally, we have some good news surrounding that legal fight. The U.S. couples look like they will be receiving their embryos back after a prolonged court battle. An Indian court advised the couple that the Directorate General of Foreign Trade (DGFT) could make an exception to the law to allow them to deport their embryos, and the court further noted that the DGFT should take a humanitarian view of the cases. After some delay, the DGFT has informed the couples that it will, indeed, grant them an exception to the embryo export ban. This isn’t particularly meaningful news for couples seeking reproductive help in India generally, but sometimes we have to celebrate the small victories.
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The South African Florence Nightingale of Surrogacy. The purported “Florence Nightingale of Surrogacy” in South Africa has been found to have acted illegally by offering surrogacy consulting services. (Just as an FYI, Florence Nightingale never fell in love with any of her patients; she was just a really skilled nurse.)
More specifically, Lee-Ann Strydom — who appears to still have a working website for her surrogacy consulting services under the name Destiny Babies — was found to have violated the law by charging two separate couples 5000 Rand (About $380) each for her consulting services. The court reiterated that commercial surrogacy is illegal in South Africa.
Strydom herself had acted as a surrogate 6 times. Even in the ART community, that number is impressive. Moreover, because each surrogacy was presumably uncompensated in South Africa, the number is even more impressive.
Confusion in China. After lifting the “one-child” policy a year ago, China has been one of the world’s largest sources of intended parents seeking to have children by surrogacy. But the news coming out of China has been a bit whiplashy. The current state of China bans doctors from practicing assisted reproductive technology with surrogates. But, despite this ban, China is known to have a flourishing surrogacy industry. News came out last month that the government was considering just giving up and allowing surrogacy.
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Unfortunately, just when things were looking up for would-be-parents, the spokesperson for China’s National Health and Family Planning Commission spoke out that surrogacy would remain illegal and authorities would continue to crack down on the illegal domestic surrogacy industry. #Lame (But good for the US surrogacy industry, which continues to work closely with Chinese intended parents.)
England. Recently, a rumor appeared that Princess Kate was considering a surrogate for a third child. Reports have confirmed that the rumors were untrue. For now at least! Maybe Princess Kate will line up a surrogate for a baby to be named in the future.
Those are your international ART law updates for this week. I’m looking forward to next week’s column.
Ellen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.
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