International surrogacy “hot-spots”: USA, Ukraine and India

The desire to have a family should never be underestimated and more people than ever before are turning to fertility treatment, donor gametes, IVF and surrogacy to achieve their goal.  It is therefore no coincidence that we are seeing growing global interest and demand for international surrogacy in “hot-spots” in the USA, Ukraine and India.

Increasing numbers of people who are  unable  to conceive a child in their own country for a variety of different reasons are crossing international borders for fertility treatment and surrogacy.  Surrogacy offers hope to those without children and those who wish to expand and complete their families.  The inability to have a child, and the personal pain and heartache this can cause, can affect anyone, anywhere in the world with devastating consequences. International surrogacy hotspots in the USA, Ukraine and India are meeting this global demand, but it is not without its problems.

International surrogacy can create complex legal and practical difficulties that can leave surrogate born children in legal limbo and stranded abroad  and embroil their intended parents in lengthy legal battles.   Surrogacy laws vary dramatically from one jurisdiction to another and this can create fundamental conflicts of law when people enter into a surrogacy arrangement abroad that would not be legal on the same basis (or at all) in their homeland.

There have been a number of internationally publicised cases in recent years where intended parents and their surrogate born children have found themselves in serious legal difficulties.  In 2009, a Swedish couple who conceived through surrogacy in Ukraine experienced problems getting their 13 day old son home. They were told they would have to wait when they applied  for a passport for their son at the Swedish Embassy in Kiev and the Swedish foreign ministry demanded extra legal paperwork as surrogacy is prohibited in Sweden.

A French family were detained in April 2011, when they were caught trying to cross the border from the Ukraine into Hungary following the refusal by the French authorities to issue French passports for their surrogate born twin girls because surrogacy is illegal in France.  The French couple now face criminal sanctions and have made an international appeal calling for another country to grant the twins passports so they can travel home (since Ukrainian law does not recognise the twins as Ukrainian citizens).

A baby Japanese girl was also left stranded in India in 2008 when her Japanese intended parents’ relationship broke down during the Indian surrogate mother’s pregnancy.  The intended mother decided she did not wany to keep the baby and this created legal difficulties preventing her intended father and grandmother from obtaining a passport for her to travel home to Japan and an ensuing legal battle.

International surrogacy raises a multitude of legal issues for policy makers, intended parents and surrogate born children across the world.  The ability to conceive a child with the help of a foreign surrogate is only part of the picture and more needs to be done to stop intended parents and their surrogate born children  falling foul of the legal pitfalls. For more information contact me lghevaert@vardags.com.

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