Many people not actually involved in a surrogacy program themselves ask their friends, “Why do you go overseas when we have surrogacy programs here?” In most cases, the intended parents have already considered that question and decided to undertake an international program despite the greater convenience of a program at home.
There are several reasons people choose a journey that involves travel or the shipment of genetic material at significant cost, large distance between intended parents and pregnant surrogate, a long, often rushed journey to arrive in time for the birth and an extended stay in a foreign country waiting for the baby’s passport.
Often the intended parents’ home country has an altruistic surrogacy program that is strictly regulated. By its nature, that means the number of available surrogates will never meet the domestic demand for surrogacy in a world where infertility is rising. Even in countries where commercial surrogacy is legal such as the USA, its citizens choose international surrogacy programs because of the long wait to be matched with a surrogate and the subsequent delay in screening the surrogate and entering legal contracts.
An important issue that weighs on the minds of intended parents is that if their home country has altruistic surrogacy programs, it is often the case that the law provides the surrogate with the right to change her mind and keep the baby or at least the surrogate continues to be recognized as a legal parent. Further, egg donors and sperm donors have parenting rights under the laws of most countries that have altruistic surrogacy programs. The consequence of these laws is that the surrogate has the standing to bring an application in the country’s family courts for some type of access or visitation rights to the child. Gamete donors will also have the standing to bring custody or access applications.
A recent case in Australia went all the way to the High Court of Australia. In that case, the sperm donor to a lesbian couple successfully prevented the couple from moving with their children to New Zealand.
In my view, many intended parents consciously choose to undertake international surrogacy to put a geographic, socio-economic or cultural impediment to the surrogate or donor from making such an application in their country’s courts. The intended parents can then feel as if they have more substantial control over the care and custody of their children born to a surrogate overseas.
The available statistics support the assertions made above. For example, in 2012 in Australia, the number of children born to surrogates overseas was approximately 350. In the same year, the number born to Australian surrogates was 14.
In my view, while the G20 nations continue to prohibit commercial surrogacy and decline to grant absolute parental rights to intended parents, the international surrogacy programs will continue to grow in market size.
