Ukraine: surrogacy and war | Opinion

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With war comes devastation and destruction and lack of hope for the future. Nor for the many Ukrainian surrogates carrying a baby for a family abroad.

These Ukrainian surrogates may be pregnant but unable to access medical care or deliver a safe birth, or they will be with a vulnerable newborn.

This is also the case for expectant parents in the UK and many other countries who have turned to international surrogacy after many heartbreaking years of unsuccessful fertility treatment.

And of course the babies, born or to be born, in a chaotic world where it is not known when they will be able to join their new families which would normally be at the birth of their baby or shortly after.

Surrogacy, whether national or international, is now a route of choice for an increasing number of families unable to have their own children or for homosexual families wishing to have a child either as a single person or in within a same-sex relationship.

Surrogacy laws are mostly found in Human Fertilization and Embryology Act 2008 and have not kept pace with societal changes and the evolving concept of family.

The Law Commission of England and Wales and the Scottish Law Commission are currently seeking to revise the 30-year-old law, which they say is “not fit for purpose”.

Why Ukraine and why international surrogacy?

The answer is on several levels.

Surrogacy is legal in the UK, but only if it is altruistic, with the surrogate only receiving the expenses of the intended parents of the pregnancy, usually around £15,000.

There are too few women willing to be surrogates in this country and surrogate mothers and intended parents fear that surrogacy agreements are not enforceable.

Therefore, if the surrogate mother decides to keep the baby or if the intended parents decide not to receive the child, complex litigation will ensue to resolve the dispute.

For these reasons, intended parents are increasingly turning to international surrogacy in countries that allow it. It is believed that around half of surrogacy arrangements in Ukraine are now international.

Commercial surrogacy overseas has been approved by the High Court here with reported case law confirming that payments which clearly exceed expenses can be approved retrospectively, provided there is no abuse of the public order or that the surrogacy arrangement did not circumvent our Surrogacy and Child Custody Act.

Ukraine and some US states were the most popular destinations. In the United States, surrogacy is a very expensive process, usually costing at least £100,000.

By contrast, an international surrogacy arrangement in Ukraine could cost around £30,000, including payments to agencies, medical centers and surrogate mothers.

Even without the interruption of war, finding a way through the maze of Ukrainian family and nationality law, as well as English immigration and surrogacy law, is far from straightforward.

Under Ukrainian law, the surrogate mother is not the legal parent and cannot pass on Ukrainian citizenship to her child born through surrogacy. The intended parents are the legal parents.

However, under English law it is the woman who gives birth, whether in this country or abroad, who is always the legal mother and if married, her husband is the legal father, unless he did not consent to surrogacy.

This is the case even if there is no biological link between the surrogate mother and the baby, with the eggs of the donor or the intended mother and generally the sperm of the intended father.

If the intended father is a British national with a biological connection to the baby, the child will be a British national and will be entitled to a British passport, issued in Ukraine, but with a wait of several weeks.

If the intending father is not British, the situation is much more complex and will require the skills of an immigration lawyer.

life in limbo

In Ukraine, the country’s government and judicial structures, as well as surrogacy agencies, will have closed, as will British diplomatic posts.

Consequently, it is impossible to obtain British passports or travel documents for babies, leaving them stateless. The babies and their surrogates will have fled to safe places and will likely be out of contact with their agency and the intended parents.

According to reportsthere is at least 40 British families amid Ukrainian surrogacy agreements and many families from other foreign countries unable to enter Ukraine to search for their surrogate mother and baby.

the Times recently reported that 21 surrogate babies are cared for by nurses in Ukraine because the war has prevented their future parents from reaching them.

In response to this humanitarian crisis, the UK Home Office has made special arrangements for a surrogate mother, her immediate family and surrogate babies and for pregnant surrogates.

They will be granted entry visas to come to the UK outside of immigration rules due to exceptional circumstances. If the baby has British nationality, this will be settled once the baby is in this country.

This is undoubtedly helpful, but surrogate mothers, especially if they are still in Ukraine, will have difficulty applying for visas or travel documents and will join the queue of countless refugees hoping to find the security when they are unable to live in their country of origin.

In the photo above: Babies born to surrogate mothers in Ukraine are waiting for their parents (kyiv, May 2020)

Naomi Angell is a consultant at Osbornes Law and leads its adoption, surrogacy and fertility law unit. She is also a member of the Law Society’s Children’s Law Subcommittee.

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