Navigating the uncertain waters of international third-party reproduction

By Steve Snyder, executive director of IARC

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Intended parents who wish to have children through third-party reproduction, but face highly restrictive and conflicting laws and regulations in their home countries, are increasingly crossing international borders to have their genetic children abroad. 

Although the world is getting smaller and international borders are becoming more and more blurred, conflict among nations is developing over the nationality and citizenship of children born via international surrogacy arrangements. Intended parents must be aware of the complications that can arise when crossing borders for third-party reproduction.

Unintended Consequences
This new prevalence of international reproduction cases has led to numerous unintended consequences that arise from conflicting international parentage and immigration laws. Before intended parents from the U.S. decide to go abroad for third-party reproduction, it is important to explore the laws in both the U.S. and in the country where the child will be born surrounding establishing legal parentage, acquiring desired citizenship, and obtaining a birth certificate and passport (for more information, visit the U.S. Department of State website). 

Establishing Legal Parentage
Countries have different rules regarding the local parentage of children born through third-party reproduction.  For example, a child born via surrogacy in the U.S. has U.S. citizenship based on birth in the U.S.   Whether the child has the dual citizenship of his or her genetic or intended parents varies from country to country.  A child born via surrogacy in India does not have Indian citizenship.  Whether he or she has the citizenship of the genetic or intended parents again varies depending on the parent’s home country.  Such issues and variations can cause disconnects between intended parentage and citizenship and actual parentage and citizenship that may prevent the child from returning to the parent’s home country or obtaining the parents’ citizenship.  This is often profoundly affected by whether the genetic components that are used are the intended parents’ or a donor’s.
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Thai Surrogacy Case Raises Important Questions About Rights and Safety

By Steve Snyder, executive director of IARC

457221529The recent case of Pattaramon Chanbua has propagated a lot of criticism of unregulated surrogacy. Surrogacy is widely unregulated globally. Even within the U.S., surrogacy laws are disparate across state lines. In the current context of national and international law, this case serves as a crucial reminder of the importance of securing a reputable agency led by a lawyer experienced in fertility laws to protect the rights and interests of all parties involved in the surrogacy process: the surrogate, the child (or children) and the intended parents. Secondly, the case reveals four sensitive considerations in the matter of regulating an industry that involves the elaborate emotions and physical well-being of many parties.

The Case

For those unfamiliar with the case, it involves a Thai woman named Pattaramon Chanbua who was contracted by an Australian couple as their surrogate. One of the children conceived was diagnosed with Down syndrome, and from there the case gets complicated. Many of the facts of the case vary across the wide-spread coverage and have yet to be verified by a reliable source. For details on the case, read these articles from The Wall Street Journal and PBS that summarize the complexity and conflicting reports of the case.

The Issues

This case brings to light four important questions to consider:

  • What should be done to prevent horrible tragedies such as this?
  • What role, if any, should the third parties that facilitate surrogacy agreements play in screening and refusing service to those deemed “bad” parents?
  • Should intended parents have the right to manage the pregnancy?
  • Do intended parents have the right to refuse a child after the birth?

Let’s tackle these questions one-by-one.
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The Importance of Second-Parent Adoption

By Steve Snyder, executive director of IARC

Surrogacy has proven to be a blessing for many same-sex couples. However, the legal 115752075complications regarding parental rights have threatened many intended parents. For example, Huffington Post recently reported a story about two gay dads denied legal parenthood of their sons due to complicated gay marriage and parental laws. As is emphasized in this tragic case, surrogacy laws vary from state to state; in Minnesota, for example, the laws surrounding surrogacy are even somewhat of a gray area. For this reason, it is crucial for same-sex couples considering surrogacy to use legal aid and a reputable surrogacy agency to ensure that both parents have legal custody of the child.

Varying Surrogacy Laws by State

In the Midwest alone, surrogacy laws deviate greatly between states. Illinois law expressly allows gestational surrogacy agreements (where the surrogate mother is not the biological parent) but does not address traditional surrogacy agreements (where the surrogate mother is the biological egg donor). North Dakota considers traditional surrogacy agreements void and unenforceable, though gestational surrogacy agreements are enforceable. Many states throughout the U.S. have never explicitly had a court case involving the rights of an LGBT couple.

The variation in laws exists, in part, because some states believe the biological mother should have the opportunity to keep the child, should she wish to do so, while other state courts have argued same-sex couples who have already entered into a legal contract to assume parental rights should have the legal right to carry out their adoption.
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