The IBA’s response to the war in Ukraine
Ukraine conflict highlights legal issues surrounding international commercial surrogacy
Recent events – including the war in Ukraine – have brought the legal and ethical issues surrounding international commercial surrogacy into sharp focus. The practice refers to the buying and selling of surrogacy arrangements, with the child’s mother receiving payment from the intended parents.
An absence of coherent regulation across jurisdictions means that people seeking international commercial surrogacy services, surrogates and service providers can face difficulties, particularly if circumstances change unexpectedly.
The conflict in Ukraine has demonstrated these challenges. Ukraine is a popular destination for ‘intended parents’ seeking a surrogate thanks to its cost-effectiveness compared to other jurisdictions such as the US, and because it’s one of only a few countries where the intended parents are named on the birth certificate of a child born through surrogacy without the need for a court order.
By comparison, in England and Wales for example, the surrogate will be recognised as the legal mother of the baby, and if she’s married her spouse will be recognised as the legal father or second legal parent. Intended parents must then apply for a parental order after the child’s birth to resolve questions around parenthood – regardless of the country in which the surrogacy arrangement has taken place.
It’s estimated that more than 2,000 babies are born through commercial surrogacy in Ukraine each year, making it the greatest single country supplier of surrogates globally. A large majority are born to foreign couples, who may seek international surrogacy for a plethora of reasons including in instances where it’s illegal or too expensive in their home jurisdiction.
The Ukraine–Russia war has upended this, however.
‘The situation in Ukraine has meant that surrogates have been forced to either remain in a war zone – to benefit from the protections of the legal position surrounding surrogacy in Ukraine – or have had to relocate to a neighbouring jurisdiction where surrogacy agreements might not be recognised, or potentially even permitted,’ says Lee Henderson, a senior associate in the Family Law team at Penningtons Manches Cooper in London.
Women are choosing between staying to give birth in a war zone and fleeing to countries where surrogacy is illegal
Former Foreign Language and Area Studies Fellow, University of Pittsburgh
‘By way of example, Moldova does not permit surrogacy and if a surrogate were to give birth in that jurisdiction, then the surrogate will be recognised as the child’s legal guardian and would need to place it for adoption to enable the intended parents to assume care of their baby,’ explains Bethan Carr, an associate also at Penningtons.
This causes considerable difficulties for intended parents, she says, as they may not be able to travel home with their child, or even assume care of them for some time due to conflicting international laws.
Recent research suggests that, due to the war, the market for international surrogacy has already begun shifting from Ukraine to several African nations.
‘We’re seeing extreme examples of how a lack of unified, international regulation around surrogacy is placing surrogate women and the children they carry in unnecessarily dire circumstances,’ says Emma Lamberton, a former Foreign Language and Area Studies Fellow at the University of Pittsburgh. ‘Women are choosing between staying to give birth in a war zone and fleeing to countries where surrogacy is illegal, and where giving birth would automatically burden them with custody of a child not previously considered theirs.’
The recent Supreme Court decision in Dobbs v Jackson Women’s Health Organization may, meanwhile, have an impact on commercial surrogacy in the US. The judgment overturned two previous rulings – Roe and Casey – that created a constitutional right to abortion, enabling states to ban abortion at any stage of pregnancy.
The US is another destination of choice for surrogacy because of the certainty involved, with legally enforceable surrogacy contracts and a clear route for intended parents to be recognised as their child’s legal parents. Through the Supreme Court’s ruling, the issue of abortion has been left to individual states to decide, which means that laws could be passed that ban or severely restrict abortion in a way that may have an impact on embryos, in vitro fertilisation treatments and surrogacy.
A major challenge is the lack of an international convention on the recognition of laws relating to parenthood, or those relating to surrogacy arrangements. Instead, there’s a patchwork of divergent international surrogacy laws, which don’t always protect the interests of the parties involved, including those of the child.
Marcus Dearle, Chair of the IBA Family Law Committee and a partner at Miles Preston in London, has been making the case for international surrogacy regulation for over two decades. In 2015 he wrote that ‘The complex minefield of international surrogacy law is continually catching people out and the courts are left to pick up the pieces.’ He also highlighted calls from members of the judiciary in Australia, Hong Kong and the UK for change.
‘In surrogacy cases, the desperation to have a child sometimes outweighs all other considerations’, he tells Global Insight. ‘Often, particularly in international cases, insufficient thought is given to the potential legal pitfalls – if they are considered at all.’
In Lamberton’s view, we should turn to the Hague Adoption Convention, which was drafted in 1993 and ratified by 99 countries as of 2019. The Convention is credited with dramatically improving the process of international adoption, including by addressing human trafficking and other abuses that were rife within the process.
‘Surrogacy is a comparable industry, and regulation is certainly possible’, says Lamberton. ‘In 2015, the Hague Conference formed the Expert’s Group on the Parentage/Surrogacy Project to determine policy recommendations. Just like with adoption, the Expert’s Group should develop standards for accrediting surrogacy agencies, record keeping, and the responsibilities and rights of all stakeholders.’
In England and Wales surrogacy is legal, but surrogacy arrangements are unenforceable and the rules around payments are complex. The Law Commission has been carrying out a review of potential areas for improvement since 2019, and a final report and a draft bill are due to be published later in 2022. These will seek to address specific issues such as the delayed recognition of legal parenthood and changes to parental recognition in international surrogacy arrangements.
Linzi Bull, a partner at Penningtons, explains that ‘the law of England and Wales does not properly protect any of the parties in surrogacy arrangements, and some of the initial changes proposed by the Law Commission will hopefully make surrogacy feel more accessible.’
Sophie Cameron is a freelance journalist. She can be contacted at firstname.lastname@example.org
Image credit; Yakobchuk Olena/AdobeStock.com