What does the war in Ukraine mean for international surrogacy arrangements?

Russia’s invasion of the Ukraine in February 2022 was met with widespread horror in international communities across the globe. It has since caused immeasurable damage to millions of people both living in the Ukraine and overseas.

Amongst those affected has been UK intended parents who had entered into international surrogacy arrangements in the Ukraine. Prior to the invasion, Ukraine had emerged as a popular destination for UK intended parents considering international surrogacy arrangements for a number of reasons, including:

1. Commercial surrogacy is legal in Ukraine. It is therefore easier to find a surrogate, and it is possible to enter into a binding surrogacy contract.
2. The intended parents are recognised as the legal parents of the child from birth. This therefore provides greater legal certainty for the intended parents, the surrogate and, importantly, any children. The current legal position in the UK is that the surrogate is automatically the legal mother upon the birth of the child, and a parental order must be made to the court to secure the legal status of the intended parents under UK law.

The impact on UK intended parents and their surrogates

Following the invasion, UK intended parents were suddenly placed in an unprecedented position, finding themselves unable to arrange travel to and from Ukraine for themselves, their children and their Ukrainian surrogates. They were also unable to move forwards with fertility treatment using gametes stored in Ukrainian fertility clinics.

Initial difficulties for UK intended parents included arranging for children born via surrogacy from the Ukraine to travel to the UK. The UK has complex laws surrounding nationality and immigration, and this commonly results in the intended parents staying in Ukraine for a period of time whilst the relevant documentation is prepared. Travel was also severely restricted, given the risks associated with travelling into a war zone. The invasion therefore meant that for many UK intended parents, it was not possible to travel to the Ukraine to collect their children and ensure that they would then also be able to safely return to the UK. Similarly there were concerns for pregnant Ukrainian surrogate mothers, including their safety and access to reasonable medical care.

What support is currently available for affected families and what further steps can be taken?

In March 2022, the UK government sought to address these concerns by offering to give visas to Ukrainian surrogate mothers, and their immediate family members, to enter the UK for up to three years. The government also stated that for children already born, they would be prepared to grant visas outside the immigration rules on the basis of exceptional circumstances.

Given the passage of time, the numbers of pregnant Ukrainian surrogate mothers and children born as a result of surrogacy in Ukraine have understandably decreased. However, the difficulties faced by UK intended parents are ongoing.

Many UK intended parents still have sperm, eggs and embryos stored in fertility clinics in the Ukraine. Given the ongoing conflict, they may wish to transport these to another country to continue treatment. The import and export of sperm, eggs and embryos to and from the UK are subject to strict rules set out by the Human Fertilisation and Embryology Authority (HFEA). If these conditions are not met, then it may be possible to apply for Special Directions and we recommend seeking specialist advice in these circumstances.

Contact a surrogacy solicitor

If you would like advice or support in respect of an international surrogacy arrangement, then do not hesitate to contact Sarah Wood-Heath or get in touch online. Our surrogacy solicitors have assisted a number of intended parents on their journey to parenthood. We can advise you on UK and international arrangements and their legal implications.