By: Marla Neufeld, Esq.
The surrogacy process is inherently stressful under ideal conditions. Even if the surrogate is legally located within the United States, fertility treatments and engaging a surrogate is expensive and the process can be involved; intended parents worry about a successful pregnancy, along with many other considerations that go along with involving a third party in the pregnancy. Now take these stressors and multiply them many times when considering a surrogate located outside of the United States with uncertain laws, different regulations over medical treatment, potential political turmoil or natural disasters coupled with rapidly changing regulations regarding the ability to travel.
Surrogacy laws vary from state to state even within the United States. Individual state’s handling of surrogacy can range from having a structured legal framework (for example, like the well-established laws in Florida where I practice), to having no laws at all, to the few limited states that still prohibit surrogacy or prohibit compensated surrogacy. However, in order to utilize United States surrogacy laws, regardless of where the intended parents reside, the surrogate must give birth in the United States for an applicable U.S. state law to apply.
Intended parents considering surrogacy with a surrogate who resides outside of the United States or a surrogate coming to the U.S. just for medical treatment and delivery who is not a citizen of the United States, have to consider the surrogacy laws, if any, of the country where the surrogate legally resides and plans to give birth. Outside of the United States, surrogacy laws can be restrictive and countries can have substantial penalties for pursuing surrogacy within their borders. These unfavorable laws can jeopardize the intended parents ability to secure parental rights for the child, amongst other possible criminal penalties. Additionally, if the intended parents reside in a country outside of where the surrogate gives birth, the intended parents need to analyze their legal ability to enter the country of birth, how they will be able to leave with the child once born, and the state of political affairs in the country where the birth is slated to occur.
When pursuing surrogacy in the United States with a U.S. based surrogate, intended parents know they will have the security of a highly regulated industry with strict governance over the medical care, and provided proper legal counseling is obtained, the parties can proceed with the reassurance that their parental rights will be established.
Upon the birth of a child
via surrogacy in the United States, the baby will be deemed a U.S. citizen and eligible to obtain a U.S. Passport to travel back home with the intended parents. When a baby is born outside of the United States via surrogacy, it is possible the baby may be born stateless in the country of birth. For international intended parents pursuing surrogacy in the United States, various immigration considerations still need to be made as to the intended parents ability to travel to the U.S. and stay for the required period of time within the United States.
It is estimated that with around 50 fertility clinics in Ukraine, approximately 2,000 children are born
via surrogacy every year in Ukraine, mostly to foreign couples. Besides seemingly favorable surrogacy laws in Ukraine, for a certain population of intended parents, lower cost is a predominant factor as to why they would consider surrogacy in foreign countries, such as Ukraine. It is critical that intended parents weigh the cost savings against other risk factors of pursuing surrogacy outside of the United States. The situation in Ukraine is not the first time intended parents have had reason for major concern for the life and safety of their surrogate and baby. For example, when surrogacy was popular in India, largely due to low cost of Indian surrogacy, intended parents had to remain in India for months before they were able to leave with their baby and the medical care provided to the surrogates was questionable. Other troublesome situations have evolved overnight; there were closures of borders for travel in/out of countries due to COVID, or sudden changes in laws banning surrogacy, which occurred in Thailand.
Given the current tumultuous climate in Ukraine and Russia, intended parents from around the world who have surrogates located in Ukraine are worried for a variety of reasons. These reasons include, but are not limited to, their ability to enter Ukraine to obtain their baby, how they will be able to quickly leave upon the birth of the child, the ability to receive proper medical care and medical supplies such as medications and formula, the potential that their surrogate may evacuate Ukraine and give birth to the child in a country with unfavorable surrogacy laws jeopardizing the intended parents’ parental rights. A major concern is for the safety of their surrogate, the baby and the parents upon their arrival in Ukraine. The
New York Times reported that in a Kyiv basement 19 surrogate babies were trapped and are being kept alive by a team of nannies in order to seek shelter from shelling in Ukraine,. While U.S. federal relief is being requested to help these worried families leave Ukraine; additionally internally within the Ukraine, surrogacy agencies and fertility clinics are attempting to keep the parties safe by providing shelter or moving away from the Russian border. It is a very scary time.
Surrogacy notwithstanding, during periods of natural disasters and/or wartime, a major concern is to protect the children from physical harm as well as to prevent them from being separated from their parents during periods of evacuation. It has been reported that around 5,000 children from institutional care facilities alone have been evacuated from Ukraine to countries such as Poland, Germany, Romania, etc. for safety and medical treatment. The issue of adopting or fostering children from Ukraine has made the national spotlight with outreach efforts from around the world. Providing intercountry adoption and fostering services for the children of Ukraine presents many challenges, including political challenges and compliancy with international and U.S. adoption laws. It is difficult to determine if a child is truly eligible for adoption or whether the separation from family is merely a temporary situation. As stated in a news release published by the Ukrainian Ministry of Social Policy and as translated by the U.S. Department of State, “The policy of the Office of the UN High Commissioner for Refugees with respect to adoption is that children who are evacuated to other countries as a result of an emergency situation, including children who are granted refugee status in the territory of other countries, cannot be adopted because the majority of them are not orphans or do not have official authoritative confirmation to that effect.”
While adoptions and fostering programs may not be a viable option for the children of Ukraine, a tangible way to help is to donate money to experienced and reputable humanitarian relief organizations working directly in or around Ukraine and Russia to know that your money is going to good use such as providing shelter, food, education, medical services, and other important support. The U.S. Department of State has suggested organization such as the
Ukraine Humanitarian Fund with GoFundMe, Airlink, and All Hands and Hearts, just to name a few.
For any intended parent embarking upon the surrogacy process both inside and outside of the United States, it is critical that they consult with the appropriate legal counselor at the beginning of the process to best understand the parties rights and legal protections for the entire surrogacy process given the facts of the case, which factors include, but are in no way limited to, the location of surrogate, location of the intended parents, the intended parents’ marital status, and the genetics of the embryos, just to name a few considerations necessary to be analyzed. Legal counseling is not only required in the United States if there is a U.S. connection to the surrogacy process, the parties should consult with an attorney in the applicable foreign country if any part of the process, including the residence of the surrogate or intended parents, is outside of the United States.
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