Family Law

The Surprising Answer To Where In The World Surrogacy Is (Il)Legal (European Edition)

Europe is way behind America in allowing people to grow their families through assisted reproductive technology.

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Among the many issues our world cannot agree on, questions like who is allowed to reproduce, and how, seem to rank highly among the hotly contested. Is in vitro fertilization (IVF) OK? What about surrogacy? What if I’m single, or in a same-sex relationship?

The Latest Congratulations Goes To…

But before diving in, I want to send congratulations to the newest high-profile parents via surrogacy. Congrats, Robbie Williams and Ayda Field. If you’ve been living under a rock lately, Robbie Williams is a British pop star, and Ayda Field is an American actress. The pair are both UK X-Factor judges, and they recently celebrated the birth of their new daughter, Coco.

Yay For (Most Of) The Land Of Freedom!

Here in the United States, we have a patchwork of laws, or a lack of laws, that vary from state to state. While California and Nevada, for example, have helpful and inclusive surrogacy-specific legislation, Michigan and Arizona have anti-surrogacy legislation. Many states fall in the middle with no law, or partially helpful or unhelpful laws. The Empire State, surprising us all, is among the states unhelpful for hopeful parents. Legislation was recently proposed to bring New York into the 21st century, but for now, it’s still pending. Thankfully, at least the District of Columbia, Washington state, and New Jersey all passed pro-surrogacy laws in the last 18 months. Hopefully New York will follow suit.

Does Europe Hate Both Freedom and Babies?

Earlier this month, Euronews published a fascinating and illuminating survey of European law on surrogacy. Like the infinitely helpful Creative Family Connections map for the United States, the Euronews article includes a map of Europe permitting readers to click to see the law in any chosen European country.

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But I will save you time and sum it up: Europe, as a whole, remains very anti-surrogacy. Possibly stemming from medieval Catholic roots and a concomitant belief that IVF and the creation of embryos is problematic, Europe is way behind America in allowing people to grow their families through assisted reproductive technology. It’s also possible that countries are concerned that the women who choose to be surrogates might not be choosing so freely, if economic circumstances make them desperate for the cash. Or it could be the general fear of the commodification of women and children. (Lots of fair concerns to be careful and wary of!) But instead of turning to the safeguards employed by many U.S. states — like suitability requirements for surrogates, or mandatory independent legal counsel for all parties, among others — most European countries have gone with the straight-up ban. Some even go so far as to criminalize surrogacy (looking at you, Germany, Ich sehe dich) with penalties including hefty fines or even imprisonment.

The more progressive countries, given the context, include countries like the United Kingdom, Greece, and Portugal that allow for “altruistic” surrogacy. Meaning surrogacy arrangements are permitted, but the gestational carrier is strictly forbidden from receiving compensation for her time and efforts in the process.

A few European countries allow compensated surrogacy. These include Georgia (not the Southern State famous for peaches, but the Eastern European birth country of Joe Stalin), the Ukraine, and Russian. However, with little oversight to speak of, unregulated surrogacy in several of these countries have resulted in scandal.

Trouble In The Ukraine

Recently, Ukraine has been in the hotseat of bad press for surrogacy. In the latest negative reports, last week we learned that at least 30 Spanish families who pursued surrogacy in Ukraine (because it is permitted in Ukraine and not in Spain) have been unable to return to Spain with their newborn babies. While as recently as July 2018, the Spanish consulate in Kiev was issuing passports to surrogacy-born children of Spanish couples without incident. However, recent reports of surrogacy practices in Ukraine — including accusations of “Baby Factories” and charges pending against the owner of a large Ukrainian fertility clinic for human trafficking — Spain isn’t taking any chances. But in the meantime, families are stuck in Ukraine. Legislation is pending in Ukraine to provide additional oversight.

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Although the details of Robbie Williams’s surrogacy arrangement have not been shared publicly, I am guessing it wasn’t in the Ukraine. If the United States can keep its act together and minimize surrogacy-related scandal, we can aspire to become a beacon of hope that surrogacy can be done responsibly. If even one European country is persuaded, more couples (and singles!) will have the chance to fulfill their dreams of parenthood.

Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, and co-host of the podcast I Want To Put A Baby In You. You can reach her at babies@abovethelaw.com.

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