Couples overseas take advandate of legal surrogacy in U.S.

  • Article by: Tamar Lewin
  • New York Times
  • July 5, 2014 - 7:08 PM

At home in Lisbon, a gay couple invited friends over to a birthday celebration, and at the end of the evening shared a surprise — an ultrasound image of their baby, moving around in the belly of a woman in Pennsylvania being paid to carry their child.

“Everyone was shocked, and asked everything about how we do this,” said Paulo, who spoke on the condition that neither his last name nor that of his husband, João, be used since what they were doing is a crime in Portugal.

While babies through surrogacy have become increasingly common in the United States, the situation is quite different in Portugal — as it is in most of the world where the hiring of a woman to carry a child is forbidden.

In an era of globalization, the market for children crosses national borders; witness the longtime flow of Americans who have gone overseas to adopt babies from South Korea, China and Russia.

Other than the United States, only a few countries — among them India, Thailand, Ukraine and Mexico — allow paid surrogacy. As a result, there is an increasing flow in the opposite direction, with the United States drawing affluent couples from Europe, Asia and Australia. Indeed, many large surrogacy agencies in the United States say international clients provide the bulk of their business.

The traffic highlights a divide between the United States and much of the world over fundamental questions about what constitutes a family, who is a legal parent, who is eligible for citizenship and whether paid childbirth is a service or exploitation.

But while many states, including New York, ban surrogacy, others, like California, welcome it as a legitimate business. Together, domestic and international couples will have more than 2,000 babies through gestational surrogacy in the United States this year, almost three times as many as a decade ago.

Surrogacy began in the United States more than 30 years ago, soon after the first baby was born through in-vitro fertilization in England. At the time, most surrogates were also the genetic mothers, becoming pregnant through artificial insemination with the sperm of the intended father. But that changed after the Baby M case in 1986, in which the surrogate, Mary Beth Whitehead, refused to give the baby to the biological father and his wife.

In the wake of that case, traditional surrogacy gave way to gestational surrogacy, in which an embryo is created in the laboratory — using eggs and sperm from parents or donors — and transferred to a surrogate who has no genetic link to the baby.

The restrictions in many countries have been a boost for U.S. surrogacy. For overseas couples, the big draw is the knowledge that many states have sophisticated fertility clinics, experienced lawyers, a large pool of egg donors and surrogates, and, especially, established legal precedent.

“We chose the United States because of the certainty of the legal process,” Paulo said.

But it is not cheap. International would-be parents often pay $150,000 or more, an amount that rises rapidly for those who do not get a viable pregnancy on their first try.

Because surrogacy is so expensive in the United States, many couples travel to India, Thailand or Mexico, where the total process costs half or less.

For those from abroad, getting a U.S.-born baby home can involve tangled immigration problems. Some countries require a new birth certificate, a parental order or an adoption. Some will not accept a U.S. birth certificate with two fathers listed as the parents.

But international law is catching up with social practice: On June 26, in a case involving two sets of children born to U.S. surrogates, the European Court of Human Rights ruled that France had violated the European Convention on Human Rights, and undermined the children’s identity, by refusing to recognize their biological father as their legal parent, easing the way to French citizenship.

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