Fertility tourism to the U.S.

The Washington Post suggests that the U.S.A. might be a good place to come if your neighbors at home disapprove of what you hope to do...

From sex selection to surrogates, American IVF clinics provide services outlawed elsewhere

"While many countries have moved in recent years to impose boundaries on assisted reproduction, the U.S. fertility industry remains largely unregulated and routinely offers services outlawed elsewhere. As a result, the United States has emerged as a popular destination for IVF patients from around the world seeking controversial services — not just sex selection, but commercial surrogacy, anonymous sperm donation and screening for physical characteristics such as eye color.
...
"Numerous other countries also are tightening their regulation of the fertility industry. Last year, India banned commercial surrogacy. Next year, Ireland is set to join the Netherlands, Norway, Sweden, Switzerland, Finland, New Zealand and others in prohibiting anonymous sperm donation. And a large number of countries — including China, Canada and Australia — ban gender selection except in rare cases of medical need.
...
"A survey published in March in the Journal of Assisted Reproduction and Genetics found that nearly 73 percent of U.S. fertility clinics offer gender selection. Of those, nearly 84 percent offer it to couples who do not have fertility problems but are considering IVF solely to control the pregnancy’s outcome."

Surrogacy, same sex marriage, and other Singapore repugnancies

Yesterday I blogged about a court ruling in Britain that, although commercial surrogacy is illegal in Britain, it is legal for a British subject to have a child by legal surrogacy in California.  Today we turn to Singapore, where a court had ruled that a child born by surrogacy to a gay couple could not be regarded as the biological father's child (even by adoption).  A higher court this week modified the decision.  It turns out that in Singapore surrogacy is not legal for unmarried couples, and there is no same sex marriage. In fact, homosexual sex remains a crime in Singapore...

NBC has the story:
Singapore court allows gay man to adopt son in landmark ruling
The ruling comes amid a renewed public push to review Singapore's colonial-era law under which gay sex carries a maximum penalty of two years in jail.

"Singapore's high court on Monday allowed a gay doctor to adopt his biological son, a landmark ruling in the socially conservative city-state that comes almost a year after his initial bid was rejected.

"The decision overturns a 2017 ruling in which a court said the man could not adopt the boy because he was born by a surrogate in the United States through in-vitro fertilization — a procedure not available to unmarried couples in Singapore.

"The ruling also comes amid a renewed public push to review Singapore's colonial-era law under which sex between consenting males carries a maximum penalty of two years in jail, after a repeal of a similar law in India this year.
...
"The man, in a relationship with a same-sex partner, paid $200,000 for a woman to carry his child through in-vitro fertilization in the United States after he had learned he was unlikely to be able to adopt a child in Singapore as a gay man."
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It appears that the judge's ruling acknowledged Singaporean law against same sex marriage and same sex relations generally, but felt that the welfare of the child (who otherwise would not have had a legal parent) needed to be given priority.

An English court awards a woman the costs of surrogacy in California (although commercial surrogacy is illegal in the UK)

Here's an unusual story about surrogacy, from the UK, with a legal opinion confirming that paying a surrogate is illegal in Britain, but that British citizens can legally pay a surrogate in California:

Woman left infertile after NHS failed to detect cancer for four years awarded £580k to cover surrogacy costs  by  Telegraph Reporters, 19 DECEMBER 2018

"A young woman left infertile because her cervical cancer was not spotted for more than four years has been awarded the costs of having surrogate children in America by the Court of Appeal.
...
"The High Court awarded XX a total of £580,000 in damages last year, including the costs of fertility treatment, cryopreserving her eggs and having children by surrogacy in the UK.

"However, XX's claim for the costs of four surrogacies in California, where commercial surrogacy is legal and binding, was dismissed as the court found that commercial surrogacy was still illegal in the UK and therefore contrary to public policy.

"But, giving judgment in London on Wednesday, senior judges allowed her appeal, meaning XX will now receive as much as an additional £560,000 to cover the cost of having children with commercial surrogates in the US.

"Her solicitors Irwin Mitchell say the ruling is the first time the costs of surrogacy in the USA have been awarded in a claim for clinical negligence.
...
"Finding that the ban on commercial surrogacy was "expressly limited to acts done in the UK", the judge said that "there seems to me to be an incoherence in depriving her of her claim at the outset when she personally proposes no wrongdoing, either under Californian law or under our own law".
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Update: here's an article from The Conversation that attempts to shed some light on the finer points of British surrogacy law.

"Under the Surrogacy Arrangements Act (1985), it is not illegal for a couple to pay a surrogate to carry a baby for them and it is not illegal for the mother to accept payment. However, it is illegal for any other person to take or offer money in relation to surrogate motherhood.

Commercial surrogacy agencies are therefore illegal, as are the activities of individual commercial surrogacy agents. And such commercial deals will not be upheld by the courts. By the terms of the Surrogacy Arrangements Act and section 36(1) of the Human Fertilisation and Embryology Act (1990), no surrogacy arrangement of any sort is enforceable in law."

Successful birth in Brazil to a woman who received a uterus transplanted from a deceased donor

The Lancet reports the first known case of a live birth to a woman born without a uterus who received a transplanted uterus from a deceased donor.

Livebirth after uterus transplantation from a deceased donor in a recipient with uterine infertility

December 04, 2018 DOI:https://doi.org/10.1016/S0140-6736(18)31766-5

Background

Uterus transplantation from live donors became a reality to treat infertility following a successful Swedish 2014 series, inspiring uterus transplantation centres and programmes worldwide. However, no case of livebirth via deceased donor uterus has, to our knowledge, been successfully achieved, raising doubts about its feasibility and viability, including whether the womb remains viable after prolonged ischaemia.

Methods

In September, 2016, a 32-year-old woman with congenital uterine absence (Mayer-Rokitansky-Küster-Hauser [MRKH] syndrome) underwent uterine transplantation in Hospital das Clínicas, University of São Paulo, Brazil, from a donor who died of subarachnoid haemorrhage. The donor was 45 years old and had three previous vaginal deliveries. The recipient had one in-vitro fertilisation cycle 4 months before transplant, which yielded eight cryopreserved blastocysts.

Findings

The recipient showed satisfactory postoperative recovery and was discharged after 8 days' observation in hospital. 

...

The female baby weighed 2550 g at birth, appropriate for gestational age, with Apgar scores of 9 at 1 min, 10 at 5 min, and 10 at 10 min, and along with the mother remains healthy and developing normally 7 months post partum. The uterus was removed in the same surgical procedure as the livebirth and immunosuppressive therapy was suspended.

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In Brazil (where commercial surrogacy is apparently illegal, and legal surrogates must be family members of the intended mother), the urge to have one's own baby is nevertheless strong. 

See earlier post:

Wednesday, January 15, 2014

Womb transplants in Sweden (where surrogacy is illegal)

Is legal commercial surrogacy coming to New York and Michigan?

New York and Michigan are two states in which  surrogacy is illegal, but the winds of change are blowing, with new legislation that would legalize it introduced, but not yet passed.  (My understanding is that in both states, surrogacy contracts are presently unenforceable, and there are criminal penalties for commercial contracts.)

Possible changes in New York's surrogacy law are discussed in the New York Law Journal:

Surrogacy in New York: Boon or Bane?
By Harriet Newman Cohen and Kristen E. Marinaccio | July 27, 2018

"New York, like many other states, enacted legislation prohibiting surrogacy agreements following the heartbreaking drama of Baby M. Three decades later, New York is one of just four states1 that still bans surrogacy agreements—however, that soon may change. This article will discuss the proposed legislation known as the “Child-Parent Security Act of 2017” (CPSA) which would lift the ban on surrogacy agreements in New York. It will explore the subtle and not so subtle benefits and burdens that may ensue if the legislation is passed.
...

"Baby M’s Influence on N.Y. Law Makers
In the mid-1980’s, before Baby M, many states including New York were considering enacting legislation to regulate surrogacy agreements.2 By early 1987, a bill was pending in the New York Legislature.3 That same year, just across state lines, in New Jersey, an emotional legal battle was being waged against a traditional surrogate, Mary Beth Whitehead, when she refused to surrender “Baby M” to the intended parents, Elizabeth and William Stern.4 The dramatic media coverage of the Baby M case, which included images of the police forcibly removing the baby from Ms. Whitehead’s arms, quickly caught the public’s attention.5 By June, 1987, facing fierce opposition from feminist and religious lobby groups, a seemingly antithetical coalition, the pending bill in New York was withdrawn.6

"In 1988, the New York State Task Force on Life and the Law unanimously concluded that New York should discourage traditional and gestational surrogacy agreements.7 In 1992, the New York State Legislature adopted that recommendation, declaring all surrogacy agreements void and unenforceable.8"
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In Michigan, two bills introduced (but not yet passed):

SENATE BILL No. 1082 September 5, 2018, Introduced by Senators WARREN, ANANICH, CONYERS and YOUNG and referred to the Committee on Families, Seniors and Human Services.      A bill to establish gestational surrogate parentage contracts;  to allow gestational surrogate parentage contracts for  compensation; to provide for a child conceived, gestated, and born  according to a gestational surrogate parentage contract; to  prescribe the duties of certain state departments; to provide for  penalties and remedies; and to repeal acts and parts of acts.

The companion SENATE BILL No. 1084 provides for an appropriate birth certificate with the intended parents as the parents.

Surrogacy laws in Europe (mostly banned) and some countries where it is allowed

EuroNews has the story (and a map):

Where in Europe is surrogacy legal?

Families Through Surrogacy provides some information about countries around the world that allow surrogacy

The table below lists issues related to surrogacy in various countries which allow it.

COUNTRY	LIMITATIONS	EGG DONORS
AUSTRALIA	Altruistic surrogacy only available. No donor or surrogate matching available. Advertising for surrogates not legal. All donors must be identified Ethics committee approval often required. Foreigners cannot access surrogacy in Australia	User groups such as www.eggdonationaustralia.com.au can provide
CANADA	Altruistic surrogacy only available. Foreigners can access surrogacy	via seperate Egg donor providers
GREECE	Heterosexual couples and single females eligible. Foreign nationals allowed to engage. Surrogate cannot be compensated beyond out-of-pocket expenses	Donors, if required, must be anonymous. Eggs/embryos/sperm are able to be shipped directly from your registered clinic.
GEORGIA	Compensated surrogacy available  to heterosexual couples, including foreigners. Legal protections in place
INDIA	Only available for Indian residents	In-country donors are anonymous however donor photos may be available other details provided: age, height, weight, previous donation history, children, blood group, education level/ occupation
ISRAEL	Altruistic surrogacy available only to heterosexual Israeli residents
KENYA	Compensated surrogacy available to locals and foreigners. No legal protection
LAOS	Compensated Surrogacy available  to foreigners. Gestation & birth occurs in Thailand. No legal protection
MEXICO	Tabasco state closed to surrogacy. Other states have no legal protections. Embryo transfer occurs in Cancun or Mexico City often	Caucasian and Latin Sperm and Egg Donors available. Possible to bring your own surrogate and /or known donor. No waiting list
NIGERIA	Altruistic and commercial surrogacy available to Nigerian heterosexual residents	Egg donors available
SOUTH AFRICA	Altruistic surrogacy available to heterosexual South African residents
THAILAND	Only available altruistically to Thai residents
UK	Altruistic surrogacy only available. Advertising for surrogates not legal foreigners cannot access surrogacy in UK
UKRAINE	Only heterosexual married couples	Caucasian, offer photos with family history, occupation/ area of study, previous donor history and physical details.
USA	Gay and heterosexual foreigners can access surrogacy here see surrogacy laws by US state	Very wide range available from donor agencies or privately

COUNTRY	APPROX COSTS($US)	DONOR & SURROGATE SCREENING	YEARS EXPERIENCE	LEGAL ISSUES
AUSTRALIA	IVF: $25,000 Expenses: $10,000 Legals & counselling: $22,000	Donor screening offered only if through an egg bank	<5 td="" years="">	Transfer of legal parentage available 4-6 months post birth if uncompensated surrogacy used domestically.
GEORGIA	IVF: $8,500 Surrogacy: $26,000 + Local egg donor add $5,000 +	according to age, genetics and lifestyle, mental and physical health	10 years	Intended Parents named on birth certificate to meet the criteria of countries such as the UK, single surrogates are available and DNA testing is available
CANADA	$90,000		>15 years	Transfer of parentage. Canadian passport available
KENYA	$50,000		<3 td="" years="">	No legal protection
UK		Surrogacy UK, COTS	>15 years	Transfer of legal parentage available
USA	IVF costs: $25,000 Surrogacy: $68,000 Other costs: $20,000	Varies by agency	30 years	Parents names on the BC as mother and father
UKRAINE	IVF: $8,500 Surrogacy: $26,000 + Local egg donor add $5,000 +	according to age, genetics and lifestyle, mental and physical health	~5 years	Intended Parents named on birth certificate to meet the criteria of countries such as the UK, single surrogates are available and DNA testing is available. No eligibility for Ukraine citizenship
GREECE	IVF: $20,100 Surrogacy: $44,000 Legals: $10,000+ Local egg donor: $1,360		10+ years	Recently opened up to foreigners Parents names on the BC as mother and father. Court case prior to IVF ensures transfer of parentage occurs before embryo transfer
MEXICO	$80,000 (incl US egg donor)	unknown	<1 td="" year="">

Surrogacy in Spain

El Pais has the story:

Spanish couples undergoing surrogacy processes left in legal limbo in Ukraine
A total of 30 families are unable to secure passports for their children, after the Foreign Affairs Ministry says it has detected reports of malpractice and possible trafficking

"The Spanish Consulate in Kiev is examining the cases of 30 Spanish families currently in Ukraine and who are unable to obtain a Spanish passport for their babies after entering into what is an illegal practice back home: paying a surrogate to carry their child.
...
"The statement also warns against “entering into any surrogate pregnancy process within this context.”

"The Consulate was echoing a post on the Spanish Embassy’s website, which alerted Spanish nationals to the scams and shoddy practices of certain assisted-reproduction clinics in Ukraine, involving irregularities in the pregnancy process, induced abortions six weeks into the pregnancy so couples are forced to embark on another costly IVF treatment, and a general lack of medical attention during pregnancy.

Until July, babies born to surrogates in Ukraine were registered without fuss at the Spanish Consulate in Kiev.

... 

"While registration has not yet been point-blank refused to any of the couples, a Foreign Office spokesman said shortly before the statement was issued that they were working with the local authorities to study alternatives in the case of such an event.

Given such a scenario, one possible solution would involve applying for a Ukrainian passport for the baby, thereby allowing he or she to leave Ukraine. And, once in Spain, the parentage could be established through the courts. This is the route being suggested by some of the lawyers representing the couples in question. It was also suggested by a staff member at the Consulate to a couple who are expecting their surrogate to give birth in the next few days.

Previously, the genetic Spanish father and the Ukrainian mother would be registered as the baby’s parents. “Once in Spain, the wife would then adopt her husband’s child with the prior consent of the surrogate mother,” says Franco Antonio Zenna, a lawyer who specializes in surrogacy issues and who is representing some of the couples. “It is as though a child has been born from a husband’s affair. At least that is how it has worked for the last seven or eight years at least.”
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HT: Kim Krawiec

Surrogacy law in Israel

Haaretz has the story of the recent expansion of access to surrogacy in Israel, which however excludes same sex couples.

Why the Battle for Gay Rights in Israel Passes Through Parenthood, Not Marriage

"Thousands of Israelis walked out of their workplaces and took to the streets Sunday, to protest the government’s denial of gay men’s rights to have children through surrogacy.

"The protest over the legislation highlights how in a country where marriage is governed by religious authorities, parenthood is seen as the key to equality.

"The new legislation loosened surrogacy regulations in Israel, giving single women and women unable to become pregnant for medical reasons the right to apply for state support for surrogacy. However, an additional clause that would have granted the same rights to single fathers – and, by extension, gay couples – was nixed."

Surrogacy becomes legal in the state of Washington

Above the Law has the story:

Washington State Flips Its Anti-Surrogacy Stance
"Following the trend of jurisdictions named after our first president, Washington State just enacted into law a comprehensive new Uniform Parentage Act, effective January 1, 2019. While the state had previously allowed altruistic surrogacy — the type where you don’t get paid and where it’s really hard to find a very nice person willing to be pregnant for you for free — the Super Surrogacy-Friendly New Law (not its official name), eliminated the previous state ban on compensated surrogacy."
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And here's the Act itself (although not in a format that makes it easy to read...)
Chapter 26.26 RCW UNIFORM PARENTAGE ACT

U.S. laws on gestational surrogacy, state by state

The surrogacy agency & law firm Creative Family Connections LLC publishes a very informative interactive map (you can click on each state): 

STATE-BY-STATE INTERACTIVE MAP FOR COMMERCIAL SURROGACY

Here's a picture (green is where it's a go...)

“GREEN LIGHT” STATES

Surrogacy is permitted for all parents, pre-birth orders are granted throughout the state, and both parents will be named on the birth certificate. Go to the state page for more detailed information.

CA, CT, DC, DE, ME, NH, NV, RI

Surrogacy is permitted but results may be dependent on various factors or venue; OR only a post-birth parentage order is available. In some birth states additional post-birth legal procedure may be required. Click on any state on the map for more detailed information.

AL, AK, CO, FL, GA, HI, IL, KS, KY, MA, MD, MN, MO, MT, NC, ND, NM, OH, OK, OR, PA, SC, SD, TX, UT, VT, WI, WV

Note: The state where the baby is born must have a procedure to allow both parents to be named on the birth certificate without action in another state.

“YELLOW LIGHT” STATES

Proceed with caution. Surrogacy is practiced, but there are potential legal hurdles; or results may be inconsistent. Click on any state on the map for more detailed information.

AK, IA, ID, MS, MT, NE, TN, VA, WY

Proceed with caution. Surrogacy is practiced, but there are potential legal hurdles; or results may be inconsistent. Click on any state on the map for more detailed information.

AZ, IN

“RED LIGHT” STATES

STOP! Statute or published case law prohibits compensated surrogacy contracts, OR a birth certificate naming both parents cannot be obtained. Click on any state on the map for more detailed information.

LA, MI, NJ, NY, WA

Surrogacy in Australia

From the blog Above the Law:
A Terrible Ruling Leaves Thousands Of Children Without Legal Parents
Even the judge acknowledged that his ruling was deeply problematic.


" The Bernieres ... were an Australian couple who couldn’t conceive the old-fashioned way. Unable to have a child without help, they journeyed from their home in Melbourne to a fertility clinic in India. The hopeful parents-to-be were advised that their best chances to conceive were to use an anonymous egg donor, and a gestational carrier. The couple entered into the arrangement in 2013, and in 2014 their child was born. They brought a baby girl back to Australia. But they made the mistake of asking a Victorian court to bless the arrangement, and declare them legal parents of their own child. The court did not feel so inclined.

Justice Berman, the trial judge, agreed to let the child remain in the Bernieres’s care; however, he determined that they could not be found to be parents of the child because they did not meet the terms of the Victorian surrogacy statute, Section 60HB of the Family Law Act. The narrow statute requires that (1) surrogacy only be undertaken through a Victorian registered ART provider, (2) the procedure must be carried out in Victoria, and (3) the arrangement can only be altruistic (the surrogate cannot be paid). Further, the judge determined that without specific authority to find the Bernieres as parents to the child, his hands were tied.

Despite the fact the Mr. Bernieres was both the biological and intended parent of the child, Justice Berman determined that Mr. Bernieres could not be declared a parent to the child. But unfortunately, that judgment meant that literally no one was a legal parent of the child.

Justice Berman acknowledged that his ruling was deeply problematic for the child at issue, and noted the need for “urgent legislative change.” Two years later — and with no legislative change in sight — the case went up on appeal before the full panel of the Australian Family Court. In September 2017, the Family Court made its ruling. The Court affirmed the judgment that the judiciary had no authority to declare the Bernieres as the legal parents of the child. Here’s the order. It’s a megabummer.

Thousands Of Children Affected. The broader tragedy is that the Bernieries did not represent an isolated case. Experts estimate that 250 Australian families conceive through surrogacy arrangements abroad each year. So the implication of this ruling is that there are thousands of children in Australia with no legal parents."

Turkey to toughen laws on surrogacy, which contains "elements of adultery."

Turkey to toughen laws on surrogacy
The URL is more graphic than the headline: http://www.al-monitor.com/pulse/originals/2017/09/turkey-to-introduce-jail-for-surrogate-mothers.html

"Under the present law, surrogate motherhood is in a gray area. The 282/1 article of the Turkish Civil Code says that the relationship between mother and child is established through birth. This means that surrogate motherhood “has no basis in Turkish law” and that the surrogate mother is the mother. Should a couple try to have a child by a surrogate mother, establishing parenthood becomes a legal muddle. In vitro fertilization, on the other hand, is possible, and there are regulations in the Turkish bylaws about Assisted Reproduction and Infertility Centers, which can be used by married couples only.

If they want to have a child through a surrogate mother, most Turks simply choose to go abroad and come back with a baby, which they have registered under the name of the genetic parents. There are numerous stories about couples who go to Northern Cyprus, Ukraine or Georgia, where surrogacy is legal. Allegedly, the price for the process varies from $40,000 to $70,000. A simple Google search results in a list of websites of companies that advertise surrogate motherhood as part of their services. Turkish media has in the past published some personal stories of women who decided to become surrogate mothers in Northern Cyprus, describing the process and explaining the uneasy choices and decisions.

But the new law, reported by Hurriyet journalist Meltem Ozgenc, aims to fill in the gray area and ban surrogate motherhood altogether, including abroad, by Turkish citizens. It also bans “mediation,” “assistance,” “encouragement” or “advertisement” for surrogacy.

According to information that Al-Monitor has obtained, several provisions will be added to the current Law No. 2238 on the “Harvesting, Storage, Grafting, and Transplantation of Organs and Tissues.” The revision of the law is expected to pass within the scope of one of the upcoming decrees by the power of law — the main ruling mechanism since the government declared a state of emergency in July 2016 after the attempted coup.

The new draft law says: “Having a child or serving as a surrogate mother is banned if the pregnancy is undertaken through the reproductive cells taken from one or both of the partners, or if the embryo acquired from these cells are inseminated into others.”

According to the Hurriyet Daily News, the new draft law prohibits “undertaking a donation procedure to use someone else’s reproductive cells or embryo, as well as to donate, sell, use, stock, transfer, import and export reproductive cells or embryos for this purpose.”

The draft’s last paragraph adds that the penalties foreseen in the law are applicable even if the surrogacy takes place in a country where it is legal.

Besides introducing prison time between two to five years for those involved in surrogate motherhood, the law also clarifies legal eligibility for in vitro fertilization. More precisely, the additions to the existing legislation would confirm that the in vitro fertilization process could be applied if the couple cannot have a child in natural ways and if there is a medical necessity. Yet the procedure would be allowed just for married couples, and it can only be performed in licensed centers and by medical professionals granted authority by the Ministry of Health.

The emphasis on married couples is undoubtedly in line with mainstream Sunni religious interpretations of Islam in Turkey, as the statements by the country’s top religious affairs body have confirmed in the past. In 2015, the High Council’s platform of the Directorate of Religious Affairs (Diyanet) said that in vitro fertilization between unmarried individuals “offended humane feelings and contained elements of adultery.” At the same time, it was stated that surrogate motherhood is also deemed religiously unacceptable, as it is viewed to contain elements of adultery. This view has been confirmed by some prominent religious figures, including Hayrettin Karaman and renowned televangelists such as Nihat Hatipoglu.

The adultery argument is a common basis for banning surrogacy within Sunni Islam, as the sperm of a man is introduced into the uterus of a woman other than his wife, which is prohibited by verses in the Quran. Other reasons for banning surrogacy, according to Ruaim Muaygil, are “preservation of lineage, exclusion of third parties in reproduction, upholding the rights of the child and protection from the negative effects of surrogacy.” On the other hand, more progressive professionals and scholars such as Muaygil clarify between traditional and gestational surrogacy, and use Islamic law and bioethics alongside medical evidence to show that “surrogacy is not only consistent with Sunni Islamic teachings, but is also both ethically justified and medically necessary.”