What Are The Legal Issues Involved In Surrogacy Abroad?

Most couples who decide to start a family take the conventional route. The woman in the relationship allows herself to become pregnant, and 9 months later, a baby is welcomed into the world. Unfortunately, not everyone has access to this path. Medical circumstances such as a heart condition or the surgical removal of the uterus to beat cancer may prevent people from falling back on traditional childbirth.

Fortunately, alternatives do exist. Adoption is still widely practiced worldwide, but surrogacy is an option for those who want a newborn of their own, especially a direct, genetic descendant. This is where another woman agrees to become pregnant on behalf of the hopeful family. When the birth occurs 9 months later, that baby is united with the hopeful parents so a new life as a family can begin.

One trend growing among people seeking surrogacy as a solution is the choice to take their surrogacy journey abroad. Surrogacy in another country is often done for several benefits, such as lower costs in another country, making things more cost-efficient, or having a greater choice of available surrogate mother candidates so the journey can be completed sooner.

However, the decision to go abroad brings certain legal ramifications that must be considered. The three main legal factors are:

The Rights Of The Surrogate Mother

Depending on the country you go to, or sometimes even the specific state or province within that country, surrogate mother rights can be explicitly laid out or ambiguous and prone to legal interpretation in court. However, one thing that some hopeful families must be aware of when choosing to go to another country, especially a developing nation, is that sometimes the rights and dignity of a surrogate mother are completely sublimated in the interests of money.

Unfortunately, in some situations and countries, the women presented as willing surrogate mother candidates have actually been coerced into the role because the amounts of money involved are too great to ignore for those more opportunistic and less ethical.

Some countries, like Georgia or various parts of the US, have very strict laws protecting the rights of a woman who agrees to become a surrogate mother. It is crucial for couples considering surrogacy to remember that the surrogate mother is not an employee; she is a partner and should be treated at least as an equal. Agreeing to a surrogacy where the surrogate mother may be the victim of human trafficking and coercion is not how a hopeful couple should start their life as a family.

Custody Rights Of The Parents

This is an important legal factor and can impact whether a hopeful family has the right to call a newborn their own child. While surrogacy has been practiced throughout the world for millennia, it was only in the 1980s, as it became more widespread and other types of surrogacy, such as In Vitro Fertilization, became more prominent, that it was realized a legal framework needed to be put in place to address issues of custody.

A famous example of how things go wrong is the 1986 in the US, known as the “Baby M” case. Here, the surrogate mother, after giving birth, changed her mind about giving up the baby and even kidnapped the infant for nearly 90 days. However, the hopeful family, rather than having their child returned to them, found out that because the state courts had no laws regarding child custody of surrogate babies, they found favor in the surrogate mother.

When it comes to the parental and custody rights of a surrogate child, hopeful parents should never trust a person’s word or hope “things work out.” There should be legal protection enforcing the surrogacy journey. Different states in the USA now have laws to determine this, while countries like Georgia have codified it in their constitution. Always carefully research how the custody rights for babies born of surrogate mothers are practiced in any given country or region/territory within that country. This can sometimes be the difference between coming home as a family and being forced to watch someone else raise the child you thought was your own.

Citizenship For The Baby

This varies from country to country, but each nation has specific requirements for citizenship regarding children born through surrogacy. Citizenship is not automatically granted, unlike a child born to a biological mother who is also a citizen. Failure to consider this could result in a catastrophic experience at the airport, where the arriving baby is declared “stateless” by immigration and not allowed entry into the country.

Always carefully research what the legal requirements are for your country of residence, or, for greater assurance, work with a lawyer or a surrogacy agency that is experienced in dealing with foreign couples and helping them prepare the documentation that may be required on presentation to allow a baby to be granted citizenship upon return to the intended country of residence.