What is the difference between altruistic surrogacy and commercial surrogacy?

The terms ‘altruistic surrogacy’ and ‘commercial surrogacy’ are often used to categorise different types of surrogacy around the world, although in reality there is variation within and overlap between both terms.

Commercial surrogacy

The UK Law Commissions categorise ‘commercial surrogacy’ as surrogacy in which all of the following apply:

• Surrogates paid a fee in addition to their out of pocket expenses,
• Intermediaries which match and manage surrogacy for profit, and
• Agreements made between parents and surrogates which are legally enforceable.

The places whose laws explicitly support commercial surrogacy are various states in the USA and the countries Georgia and the Ukraine.  Other countries, such as India, Thailand and Cambodia, previously allowed commercial surrogacy in practice although without a clear legal framework (and more recently it has been outlawed by the governments of these countries).

The experience of commercial surrogacy varies considerably between these different countries in respect of the ethics, the regulatory safeguards and how much of a relationship there is between the parents and the surrogate.

Altruistic surrogacy

Popular understanding is that ‘altruistic surrogacy’ means a surrogacy framework which limits what can be paid to surrogates to no more than their out of pocket expenses.  However, according to the Law Commission definition, a surrogacy framework is also classified as altruistic if there are restrictions on what intermediaries can be paid, and/or if surrogacy agreements are not legally enforceable.

There are various examples of altruistic surrogacy frameworks around the world, which vary considerably in what they do and do not allow:

Altruistic surrogacy in the UK – It is not in fact illegal in the UK for surrogates to be paid more than expenses. There is a guideline that only expenses should be paid, but in practice this is not enforced by the family court.  UK law does make it a criminal offence for surrogacy intermediaries to profit from making introductions (allowing only non-profit organisations like Brilliant Beginnings).  Surrogacy agreements are also unenforceable in the UK: the surrogate is the legal mother and must consent, after the child is born, to surrendering her parenthood.

Altruistic surrogacy in Canada – Unlike in the UK, it is a criminal offence under Canadian federal law for a surrogate to be paid more than her expenses.  It is also a criminal offence for intermediaries to provide paid surrogacy arrangement services (although consultancies which offer post-match services do exist).  However, unlike in the UK, surrogacy agreements between intended parents and surrogates are legally enforceable in most Canadian provinces, with contracts recognised as making the intended parents the legal parents from birth. 

Altruistic surrogacy in South Africa and Greece – In both countries intended parents must seek a court order authorising the surrogacy to proceed before conception takes place, and that order results in the intended parents being the legal parents from conception.  In both, there are restrictions on how much surrogates can be paid.  Greece is an emerging destination for UK parents, and South Africa is not generally accessible to parents outside South Africa.

Is ethical surrogacy a more useful categorisation?

In reality the distinction between altruistic and commercial surrogacy is not a clear one, with a range of different frameworks rather than two clear alternatives.  It may therefore be more valuable to focus on asking whether surrogacy is ethical.  Ethical surrogacy safeguards the welfare of the child and involves a fair balance between the intended parents, surrogate and any intermediaries in which no one is exploited or taken advantage of.

Different laws around the world protect these principles to varying degrees and in different ways, but the following questions are important in judging whether a surrogacy framework is ethical:

The relationship between the intended parents and the surrogate: Is there a direct relationship between the intended parents and the surrogate, or is the surrogacy managed completely by an intermediary? Is there a risk of a significant imbalance of power (and/or language barriers) between the intended parents and the surrogate? Will there be an ongoing relationship and will the child have the opportunity to know the surrogate in the future?

Surrogacy services: Can intermediaries provide matching services? If so, does their involvement help safeguard everyone involved through screening and preparation, and do they provide support through the process? Is screening of surrogates limited to their medical suitability or is there also an assessment designed to ensure they are emotionally and psychologically prepared?  What support is given to surrogates after the surrogacy process or when there are complications?

Regulatory safeguards: Is there regulatory oversight e.g. through a court ratifying that sensible pre-conception steps have been followed or through a regulator which oversees intermediary services? Does the regulation help ensure that there is a fair balance of power, everyone has given informed consent and the welfare of the child is protected?

Legal parenthood: Is the agreement between the surrogate and the intended parents legally recognised so that the intended parents are the legal parents from birth? If so, what pre-conception steps are required, and does this ensure the surrogate has given informed consent? If not, is there a legal process available to formally transfer parenthood after the birth?

Payments to surrogates: Can the surrogate be openly compensated or does the law restrict payments? Are financial transactions managed transparently or is there ‘fudging’ in practice?

Rights to information: Does the child have a right to information about his or her gestational and genetic origins?  Is the information held by private agencies or safeguarded centrally?