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Commercial surrogacy
Many intended parents, including those from the UK, will use international surrogates in their route to parenthood. In fact, Ukraine is a global surrogacy hub, and prior to the ongoing war, Ukraine was a popular choice to find a surrogate.
Within Ukraine, commercial surrogacy has been legal for married, heterosexual couples since 2000 and is the second most popular surrogacy destination, behind the USA.
Commercial surrogacy is illegal within the UK, and you are prevented from paying a surrogate, other than for their "reasonable expenses". The legal standing of intended parents also means that Ukraine is a popular choice for Brits. The law in Ukraine states that any child born will belong to the intended parents and the surrogate mother has no parental rights. Both intended parents will immediately be named on the Ukrainian birth certificate.
Surrogacy under English law
This is in stark contrast to English Law, which considers the surrogate mother (and potentially, her husband) as the legal parent of the child. This leaves the child's intended parents in a precarious position as they do not have a legal parental status over the child until they take appropriate legal steps.
The intended parents are required to apply for a Parental Order to obtain parental rights and remove the surrogate's parental rights (and her husband). It is necessary to make the application for a Parental Order within six months of the child's birth. The surrogate mother and her husband are required to consent to the Order in writing, but they can only provide this consent six weeks after the child is born.
Effects of Ukraine invasion
The Russian invasion of Ukraine has left surrogates in a desperate position and has left intended parents in turmoil. There are many pregnant surrogates and newborn babies trapped in bomb shelters, unable to flee. At the same time, intended parents are prevented from collecting their children for fear of being killed in a warzone. It is an impossible situation and one which will not improve until the war comes to an end.
A handful of happy endings have emerged, with several couples from the US, UK, Germany and Australia safely making the journey to collect their children. However, the surrogates are left post-partem and trapped helplessly in a war zone. The invasion has thrown the cross-border industry into a panic and has exposed the conflicting interests of surrogate mothers, intended parents, the agencies and the babies themselves.
The Home Secretary has recently confirmed that surrogates in Ukraine who are pregnant for British families will be eligible for special visas, allowing them to come to the UK for up to 3 years. This will act as a lifeline for the surrogates, the babies and the intended parents.
However, as the conflict continues, the situation in Ukraine is driving many couples to other surrogacy hotspots, such as Georgia, and we may see other surrogacy hotspots emerging as a result.
Here to Help
For further information regarding surrogacy, please get in touch with a member of our Family Law team below.