A recent family court judgment in the UK highlighted ethical issues with the practice of international surrogacy. The case is thought to be the first to come before a court in the UK involving a surrogate who gave birth in China, where surrogacy is illegal. It raised numerous concerns – including about the welfare of the surrogate and child, the use of sex selection and the child’s immigration status and nationality.
Surrogacy is a growing practice in the UK, with the number of births doubling between 2015 and 2025. Most of these babies are born overseas through international surrogacy. In the UK, surrogacy is permitted only under altruistic circumstances (such as a relative or friend of the intended parents carrying the baby, with no payment beyond expenses). This can make it difficult to find a domestic surrogate.
Domestic surrogacy is prohibited across all EU member nations. But in countries such as Georgia, Ukraine and many states in the US, commercial surrogacy – where the surrogate receives payment over and above her expenses – is legal. An industry has grown around the practice.
Depending on their place of birth, babies born through international surrogacy can enter a legal grey area where their nationality is uncertain. In some cases, this can lead to the risk of statelessness because of discrepancies in how legal parenthood – and therefore often nationality – are recognised.
Where commercial surrogacy is legal, a surrogate may not be recognised as having legal parenthood of a child at all. But when a family seeks to return to their country of residence with the child, if surrogacy is not legal in that country, then the legal parenthood of the “intended parents” may also not be recognised.
Given that legal parenthood determines nationality in most countries, this can leave children born through surrogacy without a clear claim to nationality.
In the case of the baby born in China, it was not until the child was 20 months old that the parenthood of the “intended parents”, and therefore the child’s British nationality, was established in law.
Attempts to increase regulation of surrogacy internationally have stalled because of disagreement between states over the ethical issues raised by the practice. But having no nationality, as can arise in international surrogacy, also calls into question the foundations upon which access to legal identity at birth is built.
For my new book, I researched cases of international surrogacy across Europe and North America, speaking to parents as well as surrogates. I found that ideas about what counts as a “legitimate” family shape decisions about what citizenship, if any, a child should have at birth.
What is a ‘legitimate’ family?
The idea of “legitimate” and “illegitimate” families has become almost obsolete in other areas of the law. But it persists when it comes to establishing nationality.
In European countries, nationality at birth is decided by the parent or parents’ nationality. The child effectively inherits it from the parents. A number of high-profile cases before the European Court of Human Rights have sought to ensure that no child born through surrogacy could be rendered stateless, despite the prohibition of the practice across EU member states.
But I found that despite this, decisions about legal parenthood – and therefore nationality – continue to be shaped by gendered assumptions about what counts as parenthood. Specifically, the need for a gestating mother and a father who is biologically related to the child is central. I also found that, even where countries have laws to protect children born through surrogacy, LGBTQ+ parents may face obstacles in registering births, because of the absence of a gestational mother in the paperwork.
In the US, nationality typically is decided by birth on US soil. However, in cases of international surrogacy – where the child is born overseas – a child may inherit their citizenship from a parent who is a US citizen.
A series of cases before the US Supreme Court showed how stricter standards were applied to the children of LGBTQ+ couples born through international surrogacy. They were assumed to be born “out of wedlock”, despite their parents being married.
These children struggled to obtain US nationality as a result. The court ruled to prevent this discrimination, but this work has reinforced the importance of marriage to parenthood. That is, it focused on the legitimacy of the marriages, rather than the relevance of marriage to parenthood.
While ethical debates around surrogacy are unlikely to be resolved any time soon, children continue to face the risk of statelessness.
States that oppose surrogacy argue that strict rules are needed to prevent exploitation, the commodification of children and human trafficking. These concerns are very real. Yet growing numbers of children are being born through international surrogacy and face the risk of statelessness.
Addressing this requires not only renewed efforts at regulation, but also a fundamental rethink of nationality laws. So often, these tie a child’s legal identity to narrow ideas of what counts as a “legitimate” family.