Surrogacy: How it Works and What to Know

A growing number of people look for information about surrogacy as a way to start a family. There are no precise figures but in the US (the largest country by far in terms of number of cases) it is estimated that about 4,000 babies are born from surrogate mothers every year. Surrogacy remains complex, and it is not easy to find comprehensive, reliable sources and experts about it.

Global expert on surrogacy and egg donation, Sam Everingham, from non-profit educator Growing Families, partners with us to answer some common questions about surrogacy. 

What is Surrogacy?

Surrogacy is an arrangement, typically evidenced by a legal agreement, where a woman (called the surrogate mother) agrees to become pregnant and give birth to a baby for other persons (called the intended parents), who will become the parent(s) of the child. 

Many cases of surrogacy involve assisted reproductive technology (ART), such as IVF and other options, which are commonly used to treat infertility.

Traditional vs. Gestational Surrogacy

Traditional surrogacy: a woman will get artificially inseminated with the father’s sperm, carry the baby and deliver it, then the father and his father will raise the child. In traditional surrogacy, the surrogate mother is the baby’s biological  mother since her egg was fertilized by the father’s sperm. Sperm may also be used from a donor.

Gestational surrogacy: with IVF, it’s possible to gather eggs from the mother, use sperm from the father to fertilise it and place the embryo into the uterus of another woman (the gestational surrogate). The surrogate carries the baby until birth. The difference is that the gestational surrogate, called “birth mother” doesn’t have any genetic ties to the baby because it wasn’t her egg that was used. The biological mother remains the woman whose egg was fertilized.

Why is there a growing demand for surrogacy?

Since many countries curbed access to domestic and international adoption, there has been a marked rise in singles and couples using surrogacy as a way to create a family. Other factors driving demand include women delaying marriage and child-bearing until later in life, the increasing recognition that single men and women can be parents and the rise in homosexual couples raising children. 

When do people use surrogacy?

There are online tools that can help you predict your chances of having a baby before you’ve even commenced IVF. 

Apart from social indications (homosexual couples), medical indications for surrogacy include  

  •         repeated failed IVF (three or more failed transfers) 
  •         absence of a womb (from birth or due to hysterectomy, which may be associated with cancer);  
  •         a chronic disease or medication which would put the intended mother’s health at severe risk if she were to carry a pregnancy (eg. kidney disease, cancer drugs);  
  •         deformation of  the  uterus (congenital or due to conditions like endometriosis) which prevents a sustained pregnancy; 
  •         changes in  the  endometrium that  do not respond to  treatment. 

Is surrogacy allowed in Hong Kong?

Hong Kong enacted legislation allowing legally recognised surrogacy and a transfer of parentage to the intended parents in 2007. However, to engage in surrogacy in Hong Kong:  

  •         applicants must be a married heterosexual couple; 
  •         applicants must not use an egg donor or the surrogates’ own eggs; 
  •         the arrangement must be altruistic (no payments to surrogates beyond expenses, commercial surrogacy is illegal);  
  •         surrogacy agreements are not enforceable. 

Unfortunately the eligibility conditions attached to this legislation entails that few couples engage in local surrogacy. Many intended parents requiring surrogacy will also require donor eggs and these regulations forbid it. Hong Kong IVF clinics do not even list surrogacy-related services on their websites. 

Hong Kong restrictions are tighter than in most other countries which have introduced domestic surrogacy laws (for example the UK, Australia, Canada, New Zealand and South Africa).   

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Are there any cross-border options for surrogacy?

For people in Hong Kong who cannot carry a child naturally yet yearn to be parents, an option can be to look further afield, to the limited number of countries that allow surrogacy. These include some US states, some Canadian provinces, Ukraine, Georgia, Greece and Russia. These jurisdictions all have laws providing binding contracts and recognising foreigners as the legal parents in surrogacy arrangements. 

While some surrogacy providers operate in countries which do not have any specific surrogacy legislation (eg Mexico, Columbia, Malaysia and Laos), the surrogate will appear on the birth certificate and there is no clear pathway to parentage. 

In recent years, a number of Asian destinations once popular for surrogacy have banned the practice, or banned foreigners from engaging in the practice. These include India, Thailand, Cambodia and Nepal. 

A final group of countries allow altruistic surrogacy for their own resident citizens, but not foreigners (eg Australia, New Zealand, UK, South Africa, Israel, India, Czech Republic, Netherlands). Such countries tend not to allow commercial surrogacy agencies to operate, which can make sourcing and screening of possible surrogates a difficult and emotionally arduous task. 

How much does surrogacy cost?

Surrogacy requires a substantial financial investment given the many components involved. These may include egg donor recruitment and compensation, surrogate recruitment, expenses, care and compensation, expert IVF techniques, embryo shipping, travel costs, legal representation for both surrogate and intended parents and birth-related costs. According to Growing Families, total average costs vary between HK$400,000 and HK$1,250,000.

Health insurance usually does not cover surrogacy, so the risk of unforeseen medical costs need to be carefully managed, particularly in countries like the USA, where medical costs can quickly spiral. Opting for single rather than double embryo transfer is the best means of reducing risk, as it substantially lowers the risk of a twin pregnancy, thus reducing miscarriage rates, pre-term delivery and pregnancy complications requiring additional bed-rest. 

Success rates & guarantee programs

When considering success rates, you need to look at an IVF clinic’s live birth rates, rather than their pregnancy rates. This is because many pregnancies miscarry usually in the first trimester. Unfortunately few countries, except in the USA and UK, publish audited live birth rate data by clinic, so for other jurisdictions you must rely on the honesty of the provider.  

Some providers may artificially inflate their success rates by only taking on younger patients or discarding results that would lower their success rates. The most important point to remember is that success is largely determined by the age of the woman who provided the eggs. 

The chance of conception declines with age, and at 35 the success rate is halved compared to a woman at her peak fertility. The quality of the eggs also declines, and therefore the risk of chromosome abnormalities increases. Where you require a donor, younger is better. 

In some countries, guarantee programs are offered which effectively cap the possible costs, by including additional embryo transfers and even additional egg retrieval procedures if the initial procedures are unsuccessful. There are pros and cons to such programs.  

Surrogacy eligibility requirements for foreigners

Some countries (for example Ukraine) only allow surrogacy for married heterosexual couples with a documented medical indication. Others allow de-facto heterosexual couples (Georgia, Greece), but not gay men. 

Some jurisdictions insist that egg donors are anonymous (eg Greece and Ukraine). Others insist that donors are known (eg Georgia). This can be a real problem if you want to ship embryos from one jurisdiction to another. For example, one hetereosexual Hong Kong couple had embryos in the UK, creating using the wife’s sister’s eggs. They were keen on surrogacy in Ukraine, but were denied given these rules. 

There are age limits on intended parents in jurisdictions like Greece (intended mothers must be under 50 years). In some countries the age cut-off is left to the discretion of the treating IVF clinic. Canadian clinics tend to use a ‘combined age’ (adding up the ages of the two partners) of less than 100 years as their standard. 

Passports & citizenship for children via surrogacy

One of the most crucial aspects to consider in cross-border arrangements is whether and how citizenship will be granted to children born via surrogacy. Canada and the USA automatically grant citizenship to any child born via surrogacy within their borders, making these countries more attractive to many.  

More often countries (eg Georgia, Ukraine, Greece, Russia) will not award citizenship in foreign surrogacy cases, meaning parents need to remain in the destination country until their own nation grants their child citizenship. Typically, this is done based on DNA-testing to prove there is a genetic link between one intended parent and the child. But each country has its own rules and timeframes. In the example of a couple (Hong Kong residents), they applied for UK citizenship for their child after surrogacy in Ukraine. The red tape which the UK applies meant a four month stay in Ukraine until their child had the necessary documents to travel. While this is typical for UK citizens, Americans, Irish and Australian citizens can achieve the same outcome in just two to six weeks. 

Entry to Hong Kong for children post surrogacy is fairly straightforward, though parents would benefit from talking to others who have completed the process. Specialist Hong Kong lawyers are listed on the Growing Families website. 

Surrogacy regulations are in flux and some governments make it harder to achieve citizenship. Achieving legal parentage can be more difficult, and solving this issue has become a priority for bodies such as the Hague Conference on Private International Law and the United Nations

Nonetheless, these regulatory headaches have failed to dissuade thousands of intended parents from following their dream of creating a family. 

Surrogacy resources

Nonprofits such as Growing Families educate and empower people planning a family to make informed choices and avoid problems in this complex landscape. They organise seminars and conferences, and offer extensive online resources and customised consultations. 

See https://www.growingfamilies.org 

This article is brought to you in partnership with Growing Families. It is informative only and is not intended to be a substitute for professional medical advice, diagnosis, or treatment, and should never be relied upon for specific medical advice.