P-307 In limbo: legalization of children born abroad through surrogacy


People willing to become parents through surrogacy will always find a way to do it – there are countries where surrogacy is perfectly legal (Belarus, India, Russian Federation, Ukraine, USA etc.). Liberal legislation, low prices and closeness to Europe make former “soviet” republics, now members of the C.I.S. (Commonwealth of Independent States) attractive for “reproductive tourists” looking for techniques not available in their countries, surrogacy among them. Of course there is always concern that the surrogate might keep the baby, but there are some countries where it's not an issue anymore (e.g. Armenia, Belarus, Kazakhstan, Kirgizia, Ukraine) no surrogate's consent is required to enter the parents’ names in the book of births. So the most important issue is the legal status of a child born through surrogacy and how to return home with a new born.

If for example delivery in a gestational surrogacy program takes place in Russia, commissioning parents obtain a Russian birth certificate with both their names on it, as if intended mother delivered herself. Surrogate's name is never mentioned. Genetic relation to the child (in case of donation) doesn't matter, there is no any requirement for the child to be genetically related to at least one of the commissioning parents (like in Ukraine). No adoption is needed.

Problems might occur only in the consulate when parents apply for national documents for their child. Normally consular officers ask no questions. But sometimes certain consulates’ officials (e.g. Germany, Spain, Sweden) suspect that a surrogacy program was arranged and refuse to issue any documents on the grounds that surrogacy is illegal or not regulated in their respective countries.

To address the issue the parents should make an apostille according to the Hague Convention of Oct. 05th, 1961. When it's made, the legal fact of the childbirth and the origin of the child established by Russian authorities should be recognized automatically in any country that signed this convention. Legal facts can be established only once.

So apostille makes the whole issue just paper work. It will have nothing to do with surrogacy anymore. The question is not if a surrogacy program was performed or not. It's whether a foreign birth certificate with an apostille is valid or not in a country where the intended parents come from. And the answer to this question is always positive – yes, it's valid - if their country signed the convention.

In our seven years experience of registering children born to foreigners through surrogacy in Russia and Ukraine there hasn't been a single case when the parents were unable to return home with their new born, it was just an issue of time (3,5 weeks as longest) and how stubborn the consular officers were. In the worst case intended parents from Spain filed a suite for the European court of Human rights, this only fact resolved the issue and they got the documents the next day.

Of course any delays in issuing travel documents for new born children are against children's best interests, against a number of international conventions. It's a discrimination against children's rights and can't be tolerated. Children should not suffer from laws that are not perfect and from incompetence of consular officers, can't get caught in limbo. Intended parents should be informed about their rights, international conventions and existing law-applying practice.

When choosing a destination for surrogacy, intended parents should get to know whether this country signed the Hague convention of Oct. 05th, 1961. A consultation of a lawyer specialized in reproductive and family law is strongly recommended.