International Fertility Tourism: The Potential for Stateless Children in Cross-Border Commercial Surrogacy Arrangements

Abstract

Since the first report of a child born to a surrogate carrier thirty years ago, a significant industry to provide women who were willing for compensation to carry a child for others has grown up world-wide. Studies have suggested that this has become a billion dollar business in a relatively short time. The market for the industry has found customers for intended parents who cannot or will not carry their own children, same-sex male couples, single people, and others who are willing to pay for surrogacy services. The United States is favorable to the growth of the business, with the exception of a few states which have imposed restrictions or refused to enforce surrogacy contracts. Other countries, including India and Ukraine have become centers for surrogacy, inducing foreigners to travel to their clinics with lower costs. Other nations have made the use of commercial surrogacy contracts either illegal or unenforceable. These include nations such as Canada, France, Germany, United Kingdom, and Japan.

The disparity of the legal policies governing commercial surrogacy has created the problem which is addressed by this article. Simply stated, the legal problem is the status of children of cross-border surrogacy arrangements. One major surrogacy country, the United States, insures that children born to American surrogates within its border have citizenship, because of the 14th Amendment. However, this is not helpful to citizens of other nations who seek surrogacy in American states such as California, Illinois or Massachusetts, since in many cases their own nations will not recognize them as legal parents. Therefore by definition such children do not have citizenship in the country of their intended parents. When Americans go to a country, such as India, to hire a surrogate (often because of substantial cost savings), the United States may not recognize them as the legal parents of the child for purposes of citizenship.

At the international level, this has caused acute problems for many intended parents, who commission a child by surrogacy in a foreign country and only then become aware of the legal complications. The authors cite examples of children born for citizens of Japan, Germany, Israel, United Kingdom, France, Ireland, and the United States carried by foreign surrogates, which left the children essentially stateless, at least as to the nation of their intended parents.

As to children born within the United States, in most cases, good legal advice is usually available, and the American bar has developed competent legal services in the field of assisted reproduction technologies (ART), which are often not available in other countries. For this reason, the authors review the state of the law governing surrogacy in the major non-U.S. providers, such as India, Ukraine, and Russia. The authors believe that it is unlikely that this matter will be addressed by treaties, given the hostility to commercial surrogacy, which exists in many countries. The authors note that proposals to treat surrogacy under existing international treaties governing adoption are also unrealistic, because adoption is universally recognized, while commercial surrogacy has generally been repudiated by the majority of the countries of the world. Efforts by the Permanent Bureau of the Hague Conference on Private International Law have been centered on the collection of information and opinions on this problem and, perhaps in the future, may be able to propose solutions. However, at this point in time, there appears to be few practical solutions to the problem of stateless children. The authors suggest that better efforts by countries to caution their own citizens about the potential dangers of cross-border surrogacy arrangements would be helpful. They note that the U.S. Department of State has undertaken to do this by providing information for Americans considering obtaining surrogacy services in other countries. The authors also note that India, the single largest provider of cross-border surrogacy arrangements, has considered some reforms, but these proposals would often result in the exclusion of certain classes of potential parents, such as same-sex couples or unmarried persons, rather than dealing with the best interests of children of surrogacy. It now appears that Russia is attempting to compete with Ukraine and India in the expanding surrogacy market, a development that is also examined in this article.

Author’s Note: We recognize that this area of law is quickly emerging and changing, and particular statements made in this article may need revision or qualification after publication.