Private International Law Regarding Surrogacy

Victoria Ferrara


One of the many benefits of working with Worldwide Surrogacy Specialists, LLC is the agency's extensive experience with surrogacy, including international surrogacy agreements (ISAs). The team at Worldwide will help guide international intended parents to best prepare all aspects of the surrogacy, including legal parentage.

Private International Law (PIL) applies to citizens from different countries conducting business (i.e. international surrogacy agreements). In the event that something goes wrong or one party seeks legal action, the need arises to determine jurisdiction, of which involved party's national laws will apply. Private International Law in surrogacy may be needed to determine legal parentage and the nationality of the child. This will determine whether the child is a citizen in the country where they were born or in the country where their parents are nationals and they will reside.

A group of experts on surrogacy comprise the Parentage/Surrogacy Project. These representatives met at the Hague Conference on Private International Law early in 2017. Participants included representatives from twenty-two countries (including the US), as well as the Council of Europe, the International Social Service (ISS), and the International Academy of Family Lawyers (IAFL). The group addressed the critical importance of creating a unilateral method for establishing legal parentage in International Surrogacy Agreements (ISAs). Collectively, the group agreed the need exists to protect all children by creating a framework for establishing legal parentage, identifying the child's nationality, and respecting the child's right to know their history under an internationally agreed to set of rules or conditions. No such international law has been established as of this writing; however, the group concluded this need is an "urgent" matter and recommended another meeting be scheduled to continue their work.

WSS has been fortunate enough to work with international intended parents from several different countries. Our agency is experienced at advising international IPs on who to contact in their country (i.e. attorneys or additional resources) to learn how they can ensure parentage is established prior to the birth of the child. Just as each state in the US has its own surrogacy laws, so does each country around the world. In some countries, it is mandatory that the surrogate be single; if she's married, she will be seen as the legal parent. In other countries, commercial surrogacy is illegal; any surrogacy agreement must be altruistic.

Optimism persists that the experts on the Parentage/Surrogacy Project will create or inspire the creation of international surrogacy laws. With surrogacy becoming increasingly popular, we can only hope all nations, and states within, will collaborate to improve complications that can result in international surrogacies.  Until that time, international IPs should choose to work with a skilled and knowledgeable surrogacy agency that will help their experience be positive and free from avoidable obstacles.


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