Surrogacy Outside of the United States and the Outfall for Ukraine Based Surrogates and Children

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 parent(s) 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, New York, New Jersey, and California, just to name a few states), to having no laws at all, to the few limited states that still prohibit surrogacy or prohibit compensated surrogacy. However, in order to utilize the applicable surrogacy laws in the United States, regardless of where the intended parent(s) reside, the surrogate must give birth in the United States for an applicable United States state law to apply.

Intended parent(s) considering surrogacy with a surrogate who resides outside of the United States or a surrogate coming to the United States 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 parent(s) ability to secure parental rights for the child, amongst other possible criminal penalties. Additionally, if the intended parent(s) reside in a country outside of where the surrogate gives birth, the intended parent(s) 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 United States based surrogate, intended parent(s) 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 United States citizen and eligible to obtain a United States Passport to travel back home with the intended parent(s). 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 parent(s) pursuing surrogacy in the United States, various immigration considerations still need to be made as to the intended parent(s) ability to travel to the United States and stay for the required period of time within the United States.

Ukraine has been a popular destination for surrogacy, mostly to foreign couples. Besides seemingly favorable surrogacy laws in Ukraine, for a certain population of intended parent(s), lower cost is a predominant factor as to why an intended parent may consider surrogacy in foreign countries, such as Ukraine. It is critical that intended parent(s) weigh the cost savings against other risk factors of pursuing surrogacy outside of the United States. The war in Ukraine is not the first-time intended parent(s) 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 India 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 involved 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 law 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 were being kept alive by a team of nannies in order to seek shelter from shelling in Ukraine.

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. During the period of the recent war in Ukraine, children located in institutional care facilities were 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 United States 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 United States 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.”

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 United States connection to the surrogacy process, the parties should also consult with an attorney in the applicable foreign country if any, including the residence of the surrogate or intended parents, if the surrogate and/or the intended parent(s) reside outside of the United States.

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