Surrogacy is illegal where I live. Here in Italy surrogacy is totally prohibited, and there are even criminal penalties for surrogates and surrogacy agents. Can I pursue surrogacy even though it’s illegal in my home country?
Thanks for the message Jeanne;
In many countries (including most of Europe) it is absolutely illegal to perform surrogacy of any type. In other countries surrogacy is legal but very restricted. Depending on where you live, it may be necessary to travel abroad for surrogacy services. Fortunately there are very few countries where the local laws on illegal surrogacy extend to journeys performed abroad.
I recommend reviewing the laws in the more popular surrogacy destinations. For example, in Canada, Australia, the UK, Ireland, Denmark, Belgium and Netherlands, residents can pursue “altruistic surrogacy”. In these countries it is illegal to pay surrogates more than their out-of-pocket expenses. It’s also illegal to hire professional consultants to arrange surrogacy agreements or advise parents on the process.
There are only a few countries where couples can legally pursue “commercial surrogacy”, meaning that professional services are legal, the surrogate is generously compensated. These would include the United States, Ukraine, Greece, and Georgia. These are the jurisdictions where you are safest in starting a surrogacy journey. But there are some common problems to beware of:
Surrogacy prohibitions may block your return home
To return home the baby needs a passport to travel internationally. Normally your embassy will issue a passport for a baby born overseas. However if surrogacy is illegal in your home country, the consulate may not recognize the baby as a citizen. They may not allow the baby to be taken from it’s “legal mother”. Under the law in most countries the legal mother is the woman who gave birth to the baby (e.g., the surrogate).
Establish local citizenship of your surrogacy baby
I always advise parents that the Family Courts in your home country will be more amenable to your baby’s legal status than your embassy or consulate. If you have trouble getting a passport overseas, try to get your baby home and apply for citizenship through the family courts. Their legal mandate is to protect “the best interests of the child”, whereas the embassy’s mandate is to protect the laws and borders of the country. It’s rarely in the best interest of of the child to deny their family heritage or remove them from the custody of their biological parents. (This fact was upheld a few years ago by the European Court of Human Rights when they ruled that ALL European countries needed to provide a path to citizenship for surrogacy babies born to EU citizens.)
If you can’t get a passport from your local embassy, you may be able to get a local passport from the country where the baby is born. (The United States, Canada and Colombia will grant citizenship, but Ukraine will not.) The local passport will let the baby travel internationally, and hopefully enter your home country where you can apply for citizenship.
If you get a local passport, a visa may still be needed to enter your home country and live with you permanently. (For example, babies born in Kenya may be granted Kenyan citizenship and passports, but they can’t enter most Western countries without a visa.) It is not certain that a surrogacy baby will be granted a visa by all countries. That is also a question for a local lawyer with expertise in immigration cases.
Assuming you successfully navigate all illegal surrogacy restrictions and the baby is able to live with you, your partner/spouse will have no legal connection to the baby, and your surrogate mother may still be the mother under your local laws. Typically you will need an adoption or parental order process to change the legal mother.
Protect the parental rights from unfriendly surrogacy laws
In countries where surrogacy is illegal because local courts will not necessarily acknowledge the non-genetic parent’s relationship to the baby. But regardless of the country, you will need to work with a local lawyer to ensure that your rights are protected and that your partner/spouse can also have rights as the baby’s guardian. If not, there may be instances where you cannot legally act as the baby’s parent. For example, if the baby were sick, your partner/spouse would not be able to make medical decisions because they have no legal connection to the child. If you died, the baby would not automatically be given to your spouse, but might be sent back to its legal mother overseas. These are issues for your local lawyer to resolve with you before you begin the surrogacy process.
I hope this is helfpul,
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