International fertility tourism: the potential for stateless children in cross-border commercial surrogacy arrangements.

AuthorKindregan, Charles P.
PositionAbstract through IV. Some International Examples of Illustrative Problems in Cross-Border Surrogacy C. Are These Twins Israeli?, p. 527-558


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.

Table of Contents I. Introduction II. The United States is Generally a Favorable Surrogacy Destination for Non-Residents III. Americans Seeking Surrogacy Services outside the United States A. Why Do Americans Seek Surrogacy Services outside the Country? B. Is the Choice of a Foreign Surrogacy Arrangement Constitutionally Protected? C. U.S. Citizenship and Cross-Border Surrogacy D. When Intended Parents are Married E. Non-Marital Children IV. Some International Examples of Illustrative Problems in Cross-Border Surrogacy A. Is this Child Japanese? B. Are these Children Germans? C. Are these Twins Israeli? D. Are these Children British? E. Is this Child French? F. Is this Child Irish? G. Is this Child Indian (or American or Jamaican)? V. INTERNATIONAL TRAVEL RESTRICTIONS PREVENTING AN INTENDED PARENT FROM REACHING THE CHILD VI. THE LAW IN NATIONS THAT PROMOTE INTERNATIONAL SURROGACY ARRANGEMENTS A. India B. Ukraine C. Russia CONCLUSION INTRODUCTION

Since the first widely reported cases involving a surrogacy arrangement, in which a woman agreed to become pregnant and deliver a child for another man and woman in the nineteen eighties, (1) the practice of surrogacy has grown to a massive world-wide business. Billions of dollars are spent by "intended parents." (2) In the United States, reproduction by surrogacy has become a billion dollar industry. (3) Other nations, such as India and Ukraine, have also developed a large business of offering surrogacy services in hundreds of clinics. (4)

This article will focus on an aspect of the surrogacy business which is an offshoot of its internationalization in recent years. Certainly, practice of surrogacy across international borders appears to be beneficial in enabling people who otherwise could not become parents, except by adoption, to achieve parenthood by use of a surrogate carrier. These beneficiaries of international surrogacy include same-sex couples, infertile opposite-sex couples, and unmarried or unmated individuals. The fact that in a few countries, such as India and the Ukraine, surrogacy services are available at lower costs than in other more economically advanced nations is an offspring of what has come to be called "fertility tourism." By "fertility tourism," we mean the practice of people seeking ART or surrogacy services in other countries, because they may be restricted or even illegal in their own country. (5) Economic factors may also contribute to the growth of international commercial surrogacy when such services are more expensive in the intended parents own country than elsewhere. (6)

However, while fertility tourism7 had benefited some people who seek parenthood, it has also created legal confusion and, in some cases, created the potential to leave the legal and nationality status of the children in doubt. (8) This legal confusion arises from the fact that there is no international consensus on either surrogacy itself, or even on the national status of children born to a surrogate in one country when the intended parents are citizens and residents of another country. (9)

The issue of stateless children as a result of the growing use of international gestational arrangements is, and should be, a matter of concern to all nations, as well as the individuals concerned. By "stateless," we mean either that a child has no recognized national state in which the child is entitled to live, or that the child is not recognized as a citizen of a state in which the intended parents live. A related problem is created by international travel restrictions which may prevent intended parents from getting to a country where their child has been born to a surrogate carrier.


    The question as to how common international surrogacy arrangements are is a legitimate one. One may wonder why people looking to have a child through surrogacy would travel from one country to another, especially if such services are available in their own country. But the U.S. is a favorable destination for non-Americans seeking surrogacy services, especially when the laws in their own nation have an anti-surrogacy bias. (10) In the United States, there are many legal clinics which offer high quality surrogacy services, and gestational surrogacy contracts are generally enforceable. (11) People from countries such as Italy (12) and Canada (13) have found the United States an attractive place to find surrogate services. The obvious reason for foreign nationals to come to the United States for surrogacy services is the fact that in most American states, with few exceptions, such services are legal, available, and can provide contract terms that are enforceable in many courts. (14) Same-sex couples, unmarried persons, or others who may not be able to legally obtain surrogacy services in their own countries may find American clinics which provide them with services. (15)

    No American state makes surrogacy criminal except Michigan. (16) A few U.S states do not outlaw surrogacy, but make the contracts unenforceable by the courts--i.e. Arizona, (17) Indiana, (18) Kentucky, (19) Louisiana, (20) and New York. (21) New Jersey bans traditional surrogacy, in which the surrogate carrier is also the genetic mother of the child, and also has court rulings against the enforcement of gestational surrogacy contracts based on public policy as developed by courts. (22) A few states have statutes which make enforcement of surrogacy...

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