International Surrogacy: Ukrainian legal changes afoot?

It is understood that draft legislation has recently been introduced into the Ukrainian parliament, which if passed, would prevent foreign nationals from undergoing surrogacy in the Ukraine.  The draft legislation is believed to have been introduced in response to recently publicized cases involving foreign intended parents who have experienced serious problems obtaining travel papers to enable them to take their surrogate born babies out of  the Ukraine and return to their homeland. The legislation is currently understood to remain in draft format.

In the absence of express legislation regulating surrogacy, the legal landscape in the Ukraine is perceived as “surrogacy friendly”.  However, the legal position is complex and some foreign nationals and their surrogate born babies have unwittingly found themselves embroiled in difficult international legal battles. Different jurisdictions adopt different approaches to surrogacy, with some banning it altogether and others allowing it on a restricted and regulated basis (as is the case in the UK). This creates a legal minefield which can leave surrogate born babies stranded abroad without legal status or citizenship and without the means to travel home with their intended parents.

Expert legal advice is therefore essential from the outset in what remains an evolving area of law.

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

International surrogacy: should there be global regulation?

Surrogacy has become an increasingly popular family building option on a global scale in recent years.  Unlike adoption and private international children law, there is no international harmonisation of surrogacy law (or surrogacy practice).  Each jurisdiction adopts its own laws and regulation of surrogacy, resulting in very different approaches to surrogacy across the world, with some banning it altogether and others permitting it on a commercial basis.

The international patchwork approach to surrogacy creates all manner of legal and practical difficulties (as well as ethical sensitivities).  It increasingly challenges attitudes and policy governing fertility treatment, regulation and availability of donor eggs and sperm, incidence of multiple birth, commercialised conception and its intersection with altruism and freedom of choice, suitability and vetting of intended parents and surrogates and the character and identity of modern families created through surrogacy. It creates international conflicts of surrogacy law, which can leave surrogate born children vulnerable and stranded in foreign jurisdictions and at risk of placement in foreign orphanages.  It can also lead to criminal sanctions being taken against intended parents.

The reality is that people can cross borders and enter into commercial surrogacy arrangements in foreign jurisdictions, even if it would be illegal to undertake surrogacy on the same basis (or at all) under their own domestic law.  Sophisticated assisted reproduction techniques and commercially available surrogates, donor eggs and sperm and professionally run surrogacy organisations in some foreign jurisdictions can deliver a much wanted baby.  The best interests of that child then inevitably have to weigh into the equation, placing increasing pressure on governments and policy makers.  The surrogate born child is biologically the child of one or both intended parents and its whole future, identity and human rights are then called into question in the event of conflicting international surrogacy laws, policy and practice which can threaten his/her right to family life.

Surrogacy in its widest sense is very different from adoption and private international children law as it applies to naturally conceived children.  Surrogacy raises fundamental questions about the creation of human life, the remit and capability of fertility treatment and assisted reproduction techniques, altruism and commercialism, freedom of choice and the very powerful inherent human desire among increasing numbers of people to want to build a  family through surrogacy and assisted reproduction when other options have failed.

Given the wide global differences in attitudes to surrogacy law, policy and practice is it feasible to achieve global regulation? Until we begin to get to grips with the issues surrogacy creates in its widest sense, it is difficult to see how any form of international regulation or consensus will be reached.

IVF doctor knighted

IVF pioneer and Nobel prize winner, Robert Edwards, is to be knighted in this year’s Queen’s Birthday Honours.

Professor Edward’s pioneering fertility work resulted in the birth of Louise Brown, the first “test-tube” baby in 1978.  He was awarded the Nobel prize for medicine last year, following the start of his medical research into fertility problems and treatment over 50 years ago.

Professor Edward’s pioneering work into IVF, alongside gynaecologist Patrick Steptoe, resulted in the birth of approximately 1,000 babies at Bourn Hall fertility clinic near Cambridge by the time of Dr Steptoe’s death in 1988. The number of babies born following IVF is now said to be approximately 4 million.

Professor Edward’s is reported to be delighted to be recieving the award, following his lifetime commitment to alleviating human infertility.  His work has brought happiness and joy to millions of people across the globe.

Donor conception law and policy: ‘octomom’ doctor’s licence to be revoked

The Medical Board of California ruled that the fertility doctor who transferred 12 embryos into Nadya Denise Doud-Suleman (who gave birth to octuplets in California in January 2009 earning her the nickname ‘octomum’) should have his medical licence revoked from 1 July 2011.
The US fertility doctor transferred six times the recommended number of embryos for a woman of Ms Suleman’s age, putting her and the babies at risk of serious medical complications and death. The Medical Board of California said that the step was necessary to protect the public and that probation and monitoring would not be sufficient. The panel held that the fertility doctor “did not exercise sound judgment” and rejected arguments that the publicity surrounding the case would deter him from transferring excessive numbers of embryos to others in future saying “the board is not persuaded that relying on the public or the media to fulfil or supplement the board’s public protection role is a sound policy”.
The ‘octomum’ case attracted international headlines and sent shock waves through the US assisted reproduction community, causing concern that best practice and confidence in assisted reproductive technologies in the US had been undermined and called into question. Ms Suleman underwent IVF treatment, using her own eggs and donor sperm, and gave birth to six boys and two girls by Caesarean section. The babies are only the second full set of octuplets to be born alive in the US, having survived more than a week.
Unlike in the US, strict UK wide fertility laws and regulation by the government watchdog, the HFEA, rigorously oversee and monitor UK licensed fertility clinics and fertility treatment and prevent such high order of multiple birth (being three or more offspring in one birth). The HFEA’s introduction of the single embryo transfer policy in 2007 has also done much to reduce the multiple birth rate figure in the UK, which is considered to be the greatest fertility treatment risk for expectant mothers and their babies.