Image Description: Surrogate parents attending the birth of the child in the hospital with the gestational mother.
Russia’s invasion of Ukraine has brought into focus the vulnerabilities of surrogates gestating babies for intended parents across borders. Jurisdictions such as the UK have set up bespoke visa schemes for surrogates in Ukraine currently gestating babies for intended parents residing within their borders. However, little attention has been paid to women who served as surrogates in the past, i.e. surrogates who have now handed over babies, as well as parental rights, to intended parents in the UK and other countries. Vita Lyensko is one such Ukrainian surrogate. She gave birth to baby Sophie who came to the UK with intended parents Heather and Mark Easton, two weeks before Russia invaded Ukraine.
Under Ukrainian law, intended parents are considered legal parents of children born through surrogacy, from the time of their birth. This prevents any parental rights from accruing to surrogates. This is in contrast to practices in jurisdictions like the UK, where parental or adoption orders transfer parenthood from surrogates to intended mothers. Neither of these arrangements severs the bonding potential between surrogates, intended parents, and their children. Vita Lyensko and the Eastons formed a close relationship in the months preceding baby Sophie’s birth. The Eastons are now closely invested in Lyensko and her family moving to the UK, and have started a fundraising campaign to enable this. As we move away from traditional perceptions of families as sexual units comprising two opposite-sex parents and their children, there is increasing recognition of non-traditional familial bonds. Importantly, this includes the role of surrogates within families. I do not suggest that surrogates do – or should – take on a parental role, but that in many cases their relationships with the children as well as with the intended parents are akin to familial bonds.
Such extensions in the lived experiences of family life, as well as non-traditional perceptions of who is considered family, are not adequately reflected in the laws governing parenthood and families in many jurisdictions, including the UK. The war in Ukraine reveals immigration law and border control to be areas of immediate legal concern in this regard.
While several countries such as Ireland have opened up their borders to everyone coming in from Ukraine, including surrogates, others have more restrictive policies. The UK’s bespoke visa arrangement for surrogates does not apply to women who have served as surrogates in the past for intended families and children who are currently in the UK. Most jurisdictions, including the UK and US have relaxed visa requirements in place for immediate families of residents. This excludes surrogates whose parental rights have been transferred to intended parents in these countries, where children born to them now reside. This lack of legal standing, exacerbated by uncertainties and risks created due to the war, has the potential to permanently sever meaningful bonds between surrogates, children, and intended parents.
The crisis in Ukraine brings to attention a need to re-examine the status of surrogacy in law. It calls for the urgent acknowledgement of non-traditional family arrangements in immigration law and border control, which has implications beyond the emergencies and exceptionalities of the invasion of Ukraine. Recognising familial bonds between surrogates, intended parents, and their children could, for example, change eligibility criteria for family visit visas and immigration policy. Progressive visa and immigration policies, reflecting the realities of contemporary families, would further the rights of asylum seekers, especially as they interact with their right to private and family life under the ECHR.