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Further liberalisation of UAE fertility law - surrogacy now an option for non-Muslim expats

In this article we look at the most recent changes to Fertility Law in the UAE, moving the country closer than ever before to broader international principles, particularly for the non-Muslim community in the country, whether married or unmarried. These changes promise to benefit the UAE and all of its people for the reasons that we explore below.

The new law

Federal Decree Law No. 17/2023 (the ‘new law’), introduces amendments to the Federal Law No. 7/2019 ‘On Medically Assisted Reproduction’. Non-Muslim couples, whether or not in a marital relationship may now, under Article 8(2) of the new law, access any of the lawful assisted conception and reproduction services within the country, including surrogacy, subject to the consent of the relevant regulator in the UAE and provided that the relevant eggs and sperm are taken from the couple concerned.

The text of the prior law preventing surrogacy has been removed. The old law prohibited the practice of ‘external insemination between a sperm taken from the husband and an egg taken from the wife, then implanting the fertilised egg in the womb of another wife of the husband’. The new law leaves the regulation of surrogacy to each Emirate, under Article 2(2) (hence reference to ‘relevant regulator’). The new law has also relaxed the requirements around embryo freezing. Under Article 10(2) this is now permissible upon the written request of the couple and does not require specific consent from the relevant regulator (but will be covered by the broader consent referred to above).

In order to use such services, under Article 8(2) of the new law, an application must be made for the approval of the relevant regulator. This also stipulates that one or both parties must file an acknowledgment of the child’s descent, approved by the national regulator of the individual or couple. The child will then take that applicable nationality. Following approval from the regulator, the treatment may commence.

It remains unlawful for eggs or sperm to be used from any party other than the couple concerned, so egg and sperm banks will remain illegal for both Muslim and non-Muslim couples in the UAE.

Rationale and impact of the changes
The changes to the law are consistent with the direction of change in laws regarding family matters more broadly in the UAE, including the laws introduced in February relating to the rights of non-Muslim expats to marry and divorce in the country, approved in November 2021 by the late President Sheikh Khalifa Bin Zayed Al-Nayan.

The changes promise to make the UAE a more attractive both to international talent for the country’s growing expat workforce, and also as a medical tourism destination at the heart of the region.

The written consent obtained by the relevant regulator upon proper application for the use of assisted reproduction services in each set of unique circumstances will ensure that the services are approved to be received by the couple lawfully, and the robust set of safeguards in the pre-existing law has been preserved and updated to take into account the new law. For example, Article 14 specifies the prohibitions of certain uses of eggs and sperm, such as in egg and sperm banks. Article 22 provides for enforcement both at a national and Emirate level.

In terms of either using or becoming a surrogate, no specific safeguards or other criteria have yet been published, but it is clear that the new law no longer prohibits surrogacy and the key legal step to becoming a surrogate would appear at this stage to lie in the approval of the application made by the couple concerned to the relevant regulator.

The updated laws give individuals and couples a much broader and more flexible range of options than existed before, certainly prior to 2021. Family planning and the use of fertility services specifically, however, is one of the most significant decisions many people are likely to take throughout their lives. These are often long term plans and couples should in particular think carefully about where their lives may take them in the future. For non-Muslim expats, this may involve a move to another country or back to their country or origin before or during certain stages of fertility treatment. The implications of this should also be anticipated and considered at an early stage in order that any future flexibility that may be required can be built in at the planning stage.

This article was written by healthcare lawyer James Clarke and focuses on UAE Fertility Law. 

BSA is a regional Law Firm in the Middle East with offices in the UAE, Oman and Saudi Arabia. As a full-service law firm our practice areas include litigation, arbitration and corporate services, including M&A, banking & finance, Intellectual Property, TMT, Fintech, employment and insurance.

Published on 9 November, 2023.

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