The challenges of international surrogacy arrangements in the climate of COVID-19

International commercial surrogacy arrangements are inherently complex and unpredictable at the best of times. Not only are intended parents navigating two legally incompatible jurisdictions pertaining to their parental status and the citizenship/nationality/immigration status of their surrogate born child, there is also the matter of the creation of the embryo, the successful transfer to the surrogate and healthy pregnancy to contend with. 

With commercial surrogacy illegal in the UK, and only altruistic and compensatory agreements permitted for domestic surrogacy, it is understandable that pre-COVID, couples struggling to conceive and desperate for a child were tempted by the lure of overseas commercial agreements. Glossy brochures might give the impression that having a child via an overseas surrogate is a seamless process. However as the recent fall-out in Ukraine has shown (when the travel ban prevented intended parents from being able to collect their babies, leaving them effectively stranded and in legal limbo, see BioNews 1048), in the climate of a global pandemic, intended parents are having to keep fully abreast of their rights in relation to their child at each and every stage of the process. Without warning, intended parents can find themselves either unable to travel to be at the birth or having to travel way ahead of time to account for quarantine restrictions. 

For intended parents currently engaged in surrogacy arrangements in the US, the travel and quarantine restrictions, combined with the prohibition on obtaining an expedited US passport for the baby, has caused untold cost, stress and upheaval. By all accounts, the travel and quarantine restrictions look set to continue for the next six months. 

For those who have been unable to reach the birth in time, they have also been faced with the dilemma as to who should best care for the child (in terms of safeguarding their parental rights), until they arrive? The answer is that in the absence of a close friend or relative living stateside, special guardians, not the surrogate, can and should be appointed to care for the child during this interim period. What is the legal situation if the child needs a medical procedure? Who holds the parental authority? At what point(s), under the surrogacy agreement do the parental rights transfer from the surrogate to the intended parents? As the answers to such questions will be dependent upon the local state laws and terms of the surrogacy contract itself, it is crucial that intended parents are fully informed of their options at each stage so that they can plan ahead accordingly. 

Although from 19 June, the US State Department has begun slowly resuming service, US passports are only being issued for those facing life or death emergencies (which does not assist those in a surrogacy arrangement). This initially resulted in many babies being unable to leave the US as they had no passport to travel home on. Now, however, the British Consulate is issuing emergency passports for children born via surrogacy, although this can take between one and four weeks to obtain. Intended parents, therefore, need to be aware that their stay in the US, even after the birth, may be longer and more costly than previously anticipated. 

In Ukraine, the situation presented by the global pandemic, has exposed both the ethics and the legal vulnerabilities presented by international commercial surrogacy arrangements. A complicating factor, particular to Ukraine, is that the surrogate-born children are born stateless – a fact that some intended parents are not fully cognisant of until they are already committed to the process. Parents are, therefore, dependent upon the efficacy of the Consular Office and although they can expect a British passport for their child if he or she is born British or successfully registered as a British Citizen, this process can take between three to five months, during which time the parents are unable to leave the country. 

When the borders around Ukraine were closed at the beginning of the pandemic, more than 100 babies were left stranded across the country. BioTexCom, the largest surrogacy agency in Ukraine, attracted negative worldwide media attention when it released footage of the babies in cots in Kyiv's Venice Hotel. Fortunately, since 15 June, Ukraine has reopened its borders to foreign nationals, but they will have to demonstrate that they hold valid health insurance upon arrival in order to be allowed in. At the time of going to press, the UK falls into the 'Red Zone' there being more than 40 active COVID-19 cases per 100,000 people, which means that UK-based intended parents will be required to self-isolate/undergo observation for 14 days upon arrival. Self-isolation on entry can be completed through a mobile phone app, but this is complicated by the need to have a Ukrainian mobile with the SIM card activated before arrival in the country. 

Intended parents returning with their baby to England, will be relieved to hear that the English courts are functioning, albeit on a reduced basis and with most hearings taking place remotely. Sir Andrew McFarlane recently issued a framework explaining the functioning of the family courts for the foreseeable future as the justice system adjusts to effects of the pandemic. In light of this guidance, applications for Parental Orders will continue to be processed, it might just take slightly longer for the applications to be heard, and the hearings will be held remotely. 

The global pandemic has turned a spotlight on the grey areas exposed by the lack of harmonisation in international surrogacy laws. It is hoped that the emergence of some of the new practices, (such as the British Consulates issuing expedited passports and the provision for remote Parental Order hearings) will remain in place. We are all adjusting to the 'new normal', but for intended parents engaged in international surrogacy arrangements, the new normal involves significantly more time spent overseas, increased cost, consideration of interim guardianship measures and being proactive with regard to obtaining a passport for the child.