Complications with Surrogacy Journeys Outside the U.S.
Given the trend of more queer intended fathers embarking on IVF and surrogacy outside the United States, I have written several articles detailing the lower costs (https://www.babymoonfamily.com/original-articles/ivf-and-surrogacy-abroad) and a suggested approach on how to facilitate ethical journeys in these destinations (https://www.babymoonfamily.com/original-articles/ethical-surrogacy-abroad).
However, I wanted to balance these articles with some negative news around these types of journeys.
Conducting a journey in these destinations involves challenges and risks, only some of which can be mitigated. Countries outside the United States often operate in a regulatory ‘gray zone’ for assisted reproductive technologies (ART), which means that the process is neither legal or illegal. This can lead to complications with regard to documentation, immigration, and parentage.
In this article, I wanted to highlight two stories of intended parents (IPs) who went on journeys to destinations outside the United States: Mexico and Cyprus.
Mexico
Sam and Laura Katz with their son, Simon.
A New Jersey-based couple, Sam and Laura Katz, thought they were ‘doing everything right’ by hiring a reputable surrogacy agency in Mexico. For medical reasons and with financial limitations, the couple pursued IVF and surrogacy abroad for their family building. However, their son, Simon, was stuck in Mexico for three months before they were allowed to travel home with him, costing them excessive emotional and financial strain (1).
So what went wrong?
Essentially, the couple could not provide the correct documentation that they were the child’s parents in order to facilitate obtaining a U.S. passport and traveling with him to New Jersey.
Unlike surrogacy in the United States, the Mexican birth certificate did not have the intended parents as the parents of record. Therefore, the couple had to go through the local legislative process to have these documents changed, translated, notarized, and then they also had to have DNA testing in order to demonstrate a genetic connection (2).
However, neither Sam or Laura were informed of this by the agency, and so when they arrived at the U.S. Embassy for their appointment to get Simon a passport, they were shocked to discover that it could not be issued.
The U.S. Embassy’s website on surrogacy in Mexico is clear on this, stating the following (3):
There is no legal framework to protect parents who pursue surrogacy in Mexico, despite agencies and clinics promoting Mexico as a safe, legal destination for commercial surrogacy. Mexican surrogacy law is incomplete and open to wide interpretation. Surrogacy agreements between foreign, single and/or same-sex intending parents and gestational mothers are not uniformly enforced by Mexican courts. Intending U.S. citizen parents have suffered administrative and legal impediments to documenting children born through surrogacy. Some parents have encountered months-long delays in Mexico while waiting for court decisions on parental rights and custody. Custody and parental rights of children born in Mexico—even if they are U.S. citizens—are subject to Mexican law.
This lack of uniform regulation in Mexico means that even if you are working with an agency in a Mexican state that is ‘supportive’ of surrogacy arrangements for international IPs, the interpretation and legal documentation are up to the discretion of the local authorities. There are no guarantees like in the U.S. that the process will be lawfully recognized, and that you will be the parents of your child from the beginning, as intended.
Of advice they could share with others looking into surrogacy, Laura begins with, "Don't go to Mexico…If we could do it all over again, we would not do it internationally. We would stay in the United States. We would have just tried to raise the money because it is twice as expensive to do here as it is in another country," Laura levels (1).
Cyprus
James and Ian Buckley-Walker with their son, Henry.
James and Ian Buckley-Walker spent over £20,000 on hotels, flights, and legal fees during their enforced 3 month stay in Famagusta, northern Cyprus in March to collect their son Henry (4).
The couple explains that there were many, extremely frustrating interactions with the British passport office, with confusions regarding the need for wet ink signatures and additional complications with James’ Australian citizenship. This confusion occurred even though their interactions were being conducted with the help of a solicitor.
However, the British Foreign & Commonwealth Office, much like the U.S. Embassy website for surrogacy in Mexico, clearly highlights the challenges of international surrogacy arrangements (5)
Because surrogacy is often complex, applying for a UK passport will also be complex and can take several months. It may take time for the local authorities to understand the baby’s immigration status before the UK passport application can begin. You should allow time for these processes, including planning for a lengthy stay in the country where the child is born. Make sure you have enough money and other essential items, such as any medication you may not be able to source whilst you are there.
An added complication for James and Ian were that since Brexit, the couple was only allowed to stay in Cyprus (or the EU more broadly) for 90 days in a given 180 day time frame. Therefore, they were also at risk of deportation or being denied re-entry to Cyprus if their stay exceeded this limit.
A similar story of two dads, Alex and Greg De Mario-Ellis, being stuck in Cyprus with their daughter awaiting a UK passport was covered in 2022 (6), and so this problem has continued for intended parents for several years, with no sign of a solution.
These stories in Mexico and Cyprus are not the situation for every IP who embarks on a surrogacy journey in these countries. However, they do highlight several important things for any IP considering a journey outside the United States:
Research government websites and discuss the legal challenges with a lawyer in your home country and a lawyer in the destination country before embarking on a journey.
Assume agencies will not divulge the potential complications of a journey, as their incentive is to make the process appear as seamless as possible.
Think about the type of journey experience you want and are willing to engage in.
This last bullet point is integral to the mission at BabyMoon Family. This platform exists to help queer intended fathers truly enjoy the process of becoming fathers.
The process will always be complicated, expensive, and challenging, but knowing exactly what the risks are, how/if you can mitigate them, and what you are willing to accept are important things to consider before deciding to embark on a journey outside the United States.
References: