International Vs. Domestic Surrogacy: Differences In The Process for IPs That Are Oversees
If you are intended parents considering surrogacy, whether you live in the US or elsewhere, you need to know the basic lay of the land as far as the law is concerned – and whether surrogacy is allowed where you are and especially where your surrogate is! Even within the United States, some states are surrogacy friendly and others are not. In addition to whether it is permitted, it is also important to understand your ability, and the process, to be recognized as the legal parents of your baby.
If you live outside of the United States, it is also vital to understand related laws in your home country. You will need a knowledgeable attorney in your home jurisdiction to answer such questions as: Will you be recognized as parents of your child in your home country and region? Will there be any issues with your child’s registration or citizenship? Will one of you need to adopt the child in your home country?
The Good News. The legality of surrogacy is going in a positive direction in the United States! Just in the last 18 months, 3 states have changed their anti-surrogacy laws to now permit compensated surrogacy -- Washington State, Washington D.C. and New Jersey. If you are using a surrogate in the United States, the laws of the surrogate’s home state are important, as that is where your child will mostly likely be born and the state where you will likely obtain a court order specifying that your names should go on the baby’s birth certificate as his or her parents. Creative Family Connections has a great map that helps explain surrogacy law by state. New Mexico is surrogacy friendly and parentage orders are granted easily, thus making New Mexico a great place to find a surrogate.
OK. You have picked a great state like New Mexico to find a surrogate, you now need to know the laws in your country if you are international intended parents. In contrast to the US, many countries around the world do not permit surrogacy or place restrictions on surrogacy that make it inaccessible to all but a few. This can affect intended parents from that country, even if their surrogate and the surrogacy arrangement is in another country. Turkey for example “has a proposed law that affects intended parents seeking to use a surrogate, even if this arrangement does not happen in Turkey.” Even in some European countries you may have trouble establishing parentage in the home country if surrogacy was done elsewhere. Make sure to consult legal counsel in your home country as Intended Parents, in order to establish parentage for yourself and citizenship for your child once you return to your country after using the surrogacy process.
Distance is another significant difference for international intended parents vs domestic. Non-US intended parents planning to work with a US surrogate must consider how involved they want to be during the surrogacy and pregnancy process. Domestic intended parents typically attend the transfer, at least several OB visits and the birth of the child. International intended parents may only be able to attend the birth, and even that, due to the unpredictability of labor and birth, may not happen. Plan ahead of time and establish expectations for communication and involvement.
International intended parents should plan to be in the United States for at least several weeks (some agencies advise six weeks) after the birth in order to obtain the birth certificate and passport for the baby before being able to return home with their new bundle of joy. International intended parents will also need to budget for new born health insurance for the baby’s time receiving medical care in the United States at and after the birth. There may be additional fees for translation and the process may take longer due to language, time zones and other cultural differences.