International surrogacy and fertility law: is greater regulation needed?

The American Fertility Association (The AFA) has reportedly been inundated with questions from prospective parents and professionals about whether there should be additional regulation of surrogacy following the recent criminal investigation and prosecution of three US surrogacy lawyers. People have reacted with anger and shock to the news that these professionals have acted illegally and that surrogacy has once again been placed in the spotlight.

The AFA has stated that “it is easy to forget that assisted reproduction is, in the vast majority of cases, a process with integrity and humanity” and that “many people who choose to build their families through surrogacy can feel secure that the vast majority of professionals, surrogates and parents are decent and honest.”

The AFA believes there should not be greater regulation of surrogacy because regulation does not necessarily promote good practice. It points out that there are already regulations, policies and laws in some US states about surrogacy and that those few professionals who were willing to break the law would have done so whether or not there had been additional regulation.

Many have asked why these US professionals acted illegally and this remains unclear. The AFA has stated that “there are desperate people who will take desperate measures to fulfill their dreams of becoming parents – and there will always be some individuals who will take advantage of them if they can.  As an organization, The AFA’s goal is to try to ensure access to family building methods that are safe, informed and legal.” It also emphasizes that  “The AFA denounces the practices that have reportedly occurred.  Any kind of so-called “baby selling” is abhorrent, and contrary to everything that we stand for” http://www.theafa.org/blog/desperate-measures-the-afas-co-chairs-respond-to-recent-headlines/.

The legal restrictions surrounding surrogacy in the UK are designed to prevent the commercialization of surrogacy and stop the sort of activity reported to be at the heart of the recent US surrogacy criminal investigation. Commercial surrogacy agencies are prohibited and surrogacy contracts are not enforceable in the UK.  However, surrogacy law and practice remains legally complex, particularly when intended parents cross borders and enter into international surrogacy arrangements.  Anyone contemplating surrogacy in the UK or abroad should proceed with care and thoroughly investigate the legal issues from the start.

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