Beyond Borders, Beyond Rights: Cross-Border Surrogacy and the Conflict of Nationality Laws

Introduction

The legality and ethical implications of cross-border surrogacy continues to be an issue of debate across different states and international forums. Surrogacy is a mechanism in which it establishes a contractual agreement between intended parents and a surrogate, where the surrogate carries the child on behalf of the intended parents. Legal complications often arise when the intended parents and surrogate originate from different jurisdictions, especially concerning the child’s nationality and the intended parent(s) legal parental status. This complexity is further intensified by the fact that personal law, which governs family matters based on nationality or domicile, exhibits considerable variation between jurisdictions. While some states recognise and enforce cross-border surrogacy practices, others prohibit or restrict such arrangements altogether, thereby creating a fragmented legal landscape. This article will examine the current jurisdictional challenges in cross-border surrogacy and propose specific legal mechanisms for implementing such a harmonised regulatory approach. 

Understanding Surrogacy and The Rise of Cross-Border Challenges

The Office of the High Commissioner for Human Rights (OHCHR) Special Rapporteur on the Sale of Children defines surrogacy as a reproductive practice, involving a third party or a surrogate in which the intended parent(s) and the surrogate enters a contractual agreement, requiring the latter to give birth to the former’s child. This agreement requires the surrogate to give birth to a child with the intent of handing the child over to the intended parents’ upon birth. 

The fragmented approach on the legality of cross-border or transnational surrogacy continues to become an ongoing subject of discussion within the legal realm. Conflicting legal approaches in various states only fuel the debate over its justification as an ethical form of pregnancy. Moreover, surrogacy faces significant opposition due to religious beliefs and the view that its prohibition serves to protect the surrogate from exploitation and being treated as commodities. 

There are two main types of surrogacies, traditional and gestational surrogacy. In traditional surrogacy, the surrogate uses her own egg and carries the pregnancy, making her the genetic mother of the child. On the other hand, while gestational surrogacy utilises the surrogate’s womb as a vessel, the egg used is not her own. The egg is typically provided by the intended mother or an egg donor, and the sperm is provided by the intended father or a sperm donor. Consequently, there will be no genetic relationship between the surrogate and the child. These types of surrogacies are typically classified as either altruistic or commercial. Several jurisdictions permit altruistic surrogacy, which means it is characterised by the surrogate being compensated solely for reasonable medical, legal, and related expenses without receiving any additional compensation. This practice is deemed to be less likely to involve coercion or exploitation, whereas commercial surrogacy is frequently prohibited due to the elevated risk of surrogate exploitation and involvement of payments that exceed necessary expenses.

Scholars have been analysing the ethical and legal developments associated with surrogacy since the 1970s, demonstrating how surrogacy has progressively become permissible under certain legal frameworks. This development is evident in various judicial and legislative actions across states that have reduced or eliminated surrogacy bans. For example, in the United States (U.S.), half of the states recognise the legality of surrogacy contracts. Similarly, India initially legalised surrogacy practice in 2002 but has since imposed increasing restrictions through international arrangements. In contrast, Thailand has implemented some restrictive measures, particularly through legislation in 2015, banning commercial surrogacy for foreign intended parents while still permitting limited domestic arrangements. Hence, the practical view on surrogacy still upholds that some states have now recognised surrogacy contracts, while others still prohibit the practice, specifically China and Indonesia. In China, surrogacy remains categorically prohibited by law; however, underground practice continues to exist beyond the bounds of the legal system. Similarly, Indonesia bans surrogacy based on religious, ethical, and legal grounds, though clandestine practices reportedly persist in both states. Due to the fragmented approach on the regulations surrounding surrogacy, many intended parents bypass local restrictions by engaging in cross-border surrogacy arrangements, seeking jurisdictions where the practice is legally recognised and regulated.

Cross-border surrogacy involves surrogacy arrangements that include international elements, typically occurring when intended parents seek more permissive jurisdictions outside their native country, where surrogacy is strictly regulated or prohibited. When intended parents conclude surrogacy agreements in states with favorable laws, they create transnational contracts involving multiple jurisdictions through the parties’ different nationalities and the locus contractus (place of contract formation). These arrangements are further characterised by parties traveling from restrictive territories to permissive ones, or when the intended parents and surrogates originate from different states. 

There are various legal issues that arise from cross-border surrogacy, particularly in determining the child’s legal status. Since intended parents often come from states that prohibit surrogacy, legal complications arise when they return home with the surrogate-conceived child and try to establish parental recognition. This situation raises critical questions regarding which personal law governs the child’s legal status and parental rights, creating jurisdictional conflicts between states with differing surrogacy laws.

Enforcement Dilemma Determination of Parenthood: Nationality Status of A Child Born Through Surrogacy

In cases of cross-border surrogacy, the determination of parenthood is governed by personal law, given the circumstances of the parents’ and child’s relationship. Therefore, the selection of the applicable state law becomes a matrix of urgency. This requires the forums to select one of the various possible laws to govern the surrogacy arrangements, a determination legal experts refer to as the “applicable law” or lex causae, as it will determine the governing law of the substantive issue of the case. Cross-border surrogacy will highlight the urgency of the legal complexities that a surrogate child may encounter, particularly regarding issues of parentage, citizenship, and the recognition of legal rights across different jurisdictions. Implementing all these laws simultaneously would generate significant complexity, rendering it nearly impractical for parties and courts to address such cases effectively. Therefore, it is advisable to designate a single governing law (lex causae) to apply throughout the entire surrogacy process. The child’s legal affiliation with a specific state should not be the sole consideration in deciding the governing laws of the surrogacy contract, as this relationship is only created upon formal recognition of legal parentage. Consequently, once parenthood has been proven, the child often acquires both citizenship and residence status following that of their legal parents. Since it would be impractical to declare that a newborn child maintains an independent residence, it is more appropriate to apply the law in which either the surrogate or the intended parents are subjects of.

Unlike a mother who intends to raise the child and whose state law would naturally govern family matters, a surrogate carries the child without the intention of becoming the legal parent, as her role is primarily to carry the child on behalf of the intended parents. This distinction positions surrogacy closer to adoption cases, where the Common Law principle of “lex fori” dictates the application of the court’s local law. Courts generally issue adoption orders when the adoptive parents have local residence, demonstrating their intent to raise the child within that jurisdiction. By drawing this analogy, it becomes plausible to suggest that surrogacy arrangements should primarily be governed by the intended parents’ state law, while still acknowledging the surrogate’s legal rights and interests. This approach is already the reality in some European Union jurisdictions and aligns with the interests of the parties and states involved. Additionally, since most people enter surrogacy with the intention of fulfilling their agreement, applying the law of the intended parents is a safer choice than that of the surrogate, and it is sufficient in most cases. This ensures that the interests of both the intended parents and the states involved are adequately supported.

Cross-Border Surrogacy and Legal Conflicts in France

France presents particularly important case studies in the context of cross-border surrogacy due to its absolute prohibition of surrogacy and consistent refusal to recognise foreign surrogacy arrangements. While such agreements are permitted in several jurisdictions, notably Ukraine and Russia, they are prohibited in others, including France. This legal divergence creates significant challenges for intended parents and children, particularly regarding legal parenthood and nationality, as demonstrated in the Mennesson and Labasse v France 2014. In both cases, French nationals entered into surrogacy agreements in the U.S. As a result, birth certificates were issued in California and Minnesota naming the intended parents as the legal parents.

However, when the intended parents attempted to register these foreign birth certificates in France, the French public prosecutor objected. The French Court of Cassation subsequently annulled the registrations, invoking Article 16-7 and 16-9 of the French Civil Code, which render all surrogacy agreements null and void as being contrary to French public policy. Although the California Supreme Court had recognised the intended parents as the legal parents in Mennesson, the French Court considered the foreign judgment incompatible with French international public policy. It held that recognising such a judgment would result in the validation of a legal arrangement that violates core national values and legal norms.

The French Court also asserted that the annulment of the registration did not prevent the children from living with the intended parents or maintaining emotional and social family bonds under US Law. Moreover, the European Court of Human Rights (ECHR) reviewed the matter and held that, although the annulment did not violate the right to their family life under Article 8 of the ECHR, it did infringe the children’s rights to private life. The Court emphasised the negative impact on the children’s legal identity and uncertainty surrounding their civil status and nationality. 

These cases fall within the scope of Private International Law (PIL), as they involve legal agreements concluded abroad between parties of different nationalities, raising questions about the applicable law and the recognition of foreign judgments. In both cases, the surrogacy agreements were made in the U.S., with different nationalities between the intended parents and the surrogate, which indicates a transnational connection. Therefore, resolving the matter under PIL, with France as the applicable forum (lex fori) and French Law functioning as the Lex Causae.  

As French law categorically prohibits any surrogacy agreements, the courts declined to recognise the legal effects of the U.S. judgments, causing the entries in the French central register of births, marriages, and deaths based on the U.S. birth to be annulled. Therefore, the present judgment is recorded in the margin of the invalidated birth certificates.

In the cases mentioned above, it is evident that France legally refused the recognition of parent-child relationships established through foreign surrogacy arrangements. This refusal had significant consequences for the children, particularly concerning their right to private life, as outlined in the ECHR ruling. Despite being recognised as the children of the intended parents under U.S. law, the lack of recognition in France created major issues for their basic rights, including access to essential services such as health care and education. Without proper registration of their birth, the children remained legally invisible within the French legal system, limiting their access to essential rights and potentially resulting in inadequate protection under national law. Additionally, the absence of legal parentage under French law also created uncertainty regarding their inheritance rights, illustrating the broader implications of non-recognition on their legal identity and social integration.

The lack of recognition not only disrupted the child’s sense of identity within French society but also created uncertainty regarding their eligibility for French nationality, further complicating their legal and personal status. Moreover, this situation resulted in the denial of rights to which every child is entitled under the Convention on the Rights of the Child (CRC).

Legal Framework of Cross-Border Surrogacy From Indonesian Law Perspective

Until now, not a single surrogacy agreement has occurred or been the subject of a court case in Indonesia. However, the Indonesian law strictly limits assisted reproduction methods and sets specific criteria. Article 58 of Act of Indonesia Republic Number 7/2023 concerning Health (referred to as the Health Act) permits assisted reproduction only for legally married couples, provided that: 

(1) the fertilised zygote from the intended parents is implanted in the woman who provided the ovum; 

(2) carried out by qualified and authorised Medical Personnel; and 

(3) the procedure takes place in designated health facilities. 

These conditions make it clear that Indonesian law does not include surrogacy within the legal framework of assisted reproduction and implicitly prohibits the practice of surrogacy agreements.

Law Number 1 of 1974 concerning Marriage, as amended by Law Number 16 of 2019 concerning Amendments to Law Number 1 of 1974 concerning Marriage (referred to as the Marriage Law), also governs the legal status of children. Article 42 of the Marriage Law defines legitimate children as those born in or as a result of a valid marriage. Whereas, Article 43 of the Marriage Law states that children born outside marriage have a civil relationship only with their mother and her family. Pursuant to the articles above, if a surrogate gives birth to a child while married, the law will consider the child as the legitimate child of the surrogate and her husband. However, if the surrogate is not married, the law will consider the child illegitimate and link the child only to the surrogate. 

Although no Indonesian court has handled a cross-border surrogacy case, some Indonesian couples may seek to bypass domestic restrictions by pursuing surrogacy in states that permit the practice. Unlike many states that have enacted legislation regarding PIL, Indonesia has not yet established a comprehensive PIL framework.  Nonetheless, a bill concerning PIL has been under development in Indonesia for several years. According to Article 28 Paragraph 1 of the draft bill on PIL, the validity of a child’s legitimacy through paternal acknowledgment shall be governed by the personal status law applicable to the acknowledging father at the time such acknowledgment is made. Furthermore, Article 13 Paragraph (1) of the draft bill on PIL affirms that an individual’s personal status follows their national law, based on the principle of nationality. Therefore, in cases where cross-border surrogacy is carried out by intended parents from Indonesia, the law used to determine the legitimacy of the parent-child relationship would be Indonesian law.

Although Indonesian courts have not yet addressed any surrogacy cases, it is conceivable that future cases may result in outcomes similar to those in France, due to the current and anticipated legal framework in Indonesia. As previously outlined, Indonesian law, particularly in the Marriage Law, defines a legitimate child as one born within a lawful marriage. Therefore, if Indonesian nationals engage in cross-border surrogacy agreements in jurisdictions where it is permitted, the Indonesian government may ultimately refuse to recognise the legal parent-child relationship.

Nevertheless, it is possible that the intended parents could be legally recognised as the parents of the child born through surrogacy, even in jurisdictions where surrogacy is prohibited. This recognition may occur if the surrogacy agreement is lawful under the laws of the country where it was executed. In such cases, courts might consider applying the principle of vested rights, which allows the recognition of legal statuses established abroad, so long as they do not violate domestic public policy. In Indonesia, however, where surrogacy is not legally recognised, the application of vested rights is subject to strict limitations. Indonesia’s public policy includes not only the provisions of the laws but also broader principles of morality and appropriateness embedded in the legal system. If a foreign surrogacy arrangement conflicts with these standards, Indonesian courts may refuse to grant recognition. This is particularly important when parties seek to enforce foreign surrogacy agreements within Indonesia. The courts must ensure that any such recognition does not contradict fundamental Indonesian legal norms. Therefore, Indonesian couples pursuing cross-border surrogacy should proceed with caution. They must anticipate the legal risks involved and avoid attempts to evade Indonesian laws through arrangements made abroad. As such, ensuring that any international surrogacy complies with the existing legal policy to prevent future legal disputes. 

Conclusion 

Cross-border surrogacy highlights the complexities and inconsistencies that arise in PIL governing family matters. As more people use surrogacy to start their families, they often find themselves caught between jurisdictions with opposing viewpoints and legislations. Some countries, such as Ukraine and several U.S. states, have specific laws that support and regulate surrogacy. Others, such as France and Indonesia, strictly prohibit it, generally for reasons related to public policy, cultural values, or religion. 

This patchwork of laws leads to significant issues for families and, most importantly, for the children born through these arrangements. When a surrogacy agreement that is entirely legal in one country is not recognised in another, children may find themselves in a state of legal limbo, lacking distinct citizenship, legal parents, and access to fundamental rights such as healthcare and education. The Mennesson v. France case serves as a stark illustration: Surrogate children born in the U.S. were denied legal recognition in their native countries, thereby jeopardising their identities and futures.

At the core of the matter is the question of which country’s law should determine the legal parents of the infant. While some argue for the law where the surrogate lives, many legal experts and courts are beginning to favour applying the intended parents’ legislation, as they are the ones who will be raising the child. This kind of approach can provide more stability and predictability in addition to maximising the child’s best interests. However, the absence of an international agreement will result in families continuing to experience uncertainty and children continually slipping through the gaps. Efforts like the Hague Conference’s work on parentage and the Verona Principles offer promise, but true progress depends on the state’s willingness to collaborate and prioritise children’s rights.

.