Amidst the many distressing stories in the media during the coronavirus pandemic, one particularly upsetting headline involves the stranding of surrogate children born overseas.
Ukrainian clinics have reported of hundreds of babies stranded in the Ukraine due to border restrictions amidst the coronavirus pandemic. The babies were born to surrogate mothers and are due to be collected by parents from a dozen countries including the UK, US, Italy, China, Mexico, Germany and France. The Ukrainian border restrictions are set to remain in place until at least 22 May – but the Commissioner for Human Rights in Ukraine has warned that an extended lockdown could leave thousands of children waiting for absent mums and dads.
One cannot even begin to imagine how distressing this must be for the Intended Parents involved during what should be such a wonderfully momentous time – the beginning of their new family. The Intended Parents I have acted for in the past have nearly always been present for the births of their babies born via surrogacy and have had the joy of enjoying those precious post-birth moments.
It is not just the Ukraine that has been affected. International surrogacy has become an increasingly utilised route to parenthood globally for singles and couples unable to carry a child themselves, particularly where such arrangements are not available in their home country. Certainly, the majority of Intended Parents I have acted for tend to enter into a surrogacy arrangement overseas due to the difficulty of finding a surrogate in England, where you cannot compensate a surrogate beyond “reasonable expenses”. This means that many Intended Parents will enter into an arrangement overseas in jurisdictions, such as the Ukraine, where commercial surrogacy is legal. Regardless of where a baby is born, under English Law the woman who gives birth to a baby is considered to be the legal mother. Therefore, when the parents bring their baby back to the UK, with the assistance of our immigration department, we apply to the English Court for a Parental Order to transfer the legal parentage from the surrogate mother to the Intended Parents. The English Court has jurisdiction retrospectively to authorise the commercial payments that go beyond “reasonable expenses” provided the Intended Parents have acted in good faith.
The restrictions on international travel since lockdown has had ramifications unifying parents with new-borns in other nations which allow surrogacy, particularly Georgia. Both Ukraine and Georgia have banned commercial flights. Barriers to travel extend beyond border closures to difficulty in accessing visas and the need for diplomatic co-operation between governments.
Fortunately, none of my clients have found themselves in this awful position, however, the current circumstances provide much uncertainty as to how future international surrogacy arrangements are going to be affected. Understandably, many Intended Parents who are starting out on their surrogacy journey may be hesitant to enter into an overseas surrogacy arrangement while international travel remains so uncertain.
The above is accurate as at 26 May 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.