Surrogacy in Ukraine for international clients

For surrogacy cases the most important point is that the U.S. citizen parent who intends to transmit U.S. citizenship to the child has a blood relationship to the child.

Obtaining a Consular Report of Birth Abroad (CRBA) for a child born through a Ukrainian surrogacy programme involves strict legal nuances. The U.S. Embassy in Kyiv issues this certificate solely on the basis of a direct biological connection between the child and at least one U.S. citizen parent. Even if the Ukrainian birth certificate lists the names of both intended parents, the American eCRBA will only record the parent whose genetic material was used.

Before the latest political developments in Ukraine, consular officers always required DNA testing conducted through an AABB-accredited laboratory. Now medical documentation can be used to establish the genetic or gestational relationship. The consular officer retains discretion to request DNA testing if the evidence is insufficient.

The following requirements therefore have to be met by intended parents in the exit process for U.S. citizens:

• A child born outside the United States and in wedlock to a U.S. citizen mother and a U.S. citizen father acquires U.S. citizenship at birth if one of the parents has been resident in the United States or one of its outlying possessions prior to the child’s birth.
• A child born outside the United States and in wedlock to a U.S. citizen parent and a non-U.S. citizen parent may acquire U.S. citizenship at birth if the U.S. citizen parent has been physically present in the United States or one of its outlying possessions for a period of five years, two of which were after the age of fourteen. The U.S. citizen parent must be the genetic or the gestational parent, and the legal parent of the child under local law at the time and place of the child’s birth.

Because every case is reviewed individually, parents must compile a comprehensive document file before requesting an appointment by email (kyivacs@state.gov). In addition to the Ukrainian birth certificate, the file will include clinic agreements, surrogacy contracts, signed statements of waiver from the surrogate mother, genetic affinity certificates, and evidence of the U.S. parent’s physical presence in the United States prior to the birth, among others.

Once the U.S. Embassy in Kyiv has reviewed the submitted files and scheduled an in-person interview, both parents and the newborn must attend the appointment together. After citizenship is confirmed, the embassy processes the CRBA alongside the child’s first U.S. passport.

A child born outside Canada on or after 17 April 2009 is a Canadian citizen at birth if the child has a genetic link with a parent who was a Canadian citizen, born or naturalised in Canada, at the time of the child’s birth.

Responsibility for citizenship determination and passport issuance currently rests solely with IRCC. The Embassy of Canada in Kyiv does not assess eligibility, provide legal advice or determine outcomes in citizenship or passport matters. All requirements, processing times, fees and decisions are determined by IRCC. Detailed information on citizenship applications for children born abroad through surrogacy to citizens of Canada is published by IRCC:

• Citizenship by descent, including for a child born outside Canada
• Apply for proof of Canadian citizenship
• Who can apply for a Canadian citizenship certificate

In surrogacy cases, IRCC will need a number of documents on the Ukrainian surrogacy process with double consular legalisation, as well as a fully completed citizenship application. Proof of a genetic link to the Canadian parent is also required, in particular a DNA test from a laboratory accredited by the Standards Council of Canada (SCC).

The Human Fertilisation and Embryology Act 2008 regulates surrogacy in the UK. This legislation applies to intended parents regardless of the country in which the surrogacy takes place. The legal mother is the woman who gives birth to the child, and, depending on the circumstances surrounding the insemination or embryo transfer and on her marital status, the surrogate’s husband or partner may be the second legal parent.

A foreign birth certificate is not recognised as evidence of legal parent status in this jurisdiction. The only way to extinguish those legal rights completely is to secure a Parental Order.

The exit process was revised in summer 2023. Whereas electronic Emergency Travel Documents had been available at the outbreak of the war in Ukraine, at the present stage a physical passport is issued by HMPO and couriered to Ukraine.

The exit process for citizens of the UK currently takes place in two steps:

1. A UK citizenship application through the VFS Global visa centre in Kyiv.
2. The passport application itself.

It is worth noting that a rather substantial number of documents is needed from the intended parents, the surrogate, the fertility clinic and the maternity hospital.

Under Irish law the woman who gives birth to the child — in this case the surrogate — is the legal mother of the child, even if the ovum from which the child was conceived was provided by the intended mother or by an egg donor. Under the Guardianship of Infants Act 1964, the mother of a child born outside marriage is the child’s sole guardian.

The first step in the exit process for citizens of Ireland is therefore an application for an Emergency Travel Certificate, filed with the Irish Embassy in Ukraine. For these purposes a DNA test has to be done in an accredited Ukrainian laboratory in the presence of the surrogate, after all necessary documentation has been forwarded to the DNA testing company, Ormond Quay Paternity Services.

A package of documents from the surrogate is also submitted to the Irish Embassy in Kyiv, including the swearing and notarial certification of the surrogate mother’s affidavit and, where applicable, an affidavit of her husband. A local Ukrainian independent lawyer prepares an affidavit confirming that independent legal advice was given to the surrogate.

Previously an apostille was needed on all documents issued in Ukraine. In war times it is required only on the child’s birth certificate. The Emergency Travel Certificate can also be sent by courier to any place in Ukraine.

After coming home, the intended parents go through a court guardianship process to legitimate their parental rights under the Status of Children Act 1987. The Attorney General must be put on notice of such an application. If the surrogate is married, her husband takes part in preparing the documents for the Emergency Travel Certificate application and in the guardianship court proceedings.

Between February 2022 and January 2023 the Australian government allowed babies to use an Original Travel Document, issued remotely by the Australian Embassy in Warsaw, which permitted an exit once Australian citizenship had been granted. That policy has since changed, and the process is now more demanding.

Intended parents must apply for Australian citizenship by descent for their baby before they can apply for a passport. An account is registered at online.immi.gov.au; citizenship by descent is handled by the Citizenship Program Delivery Branch of the Department of Home Affairs (citizenship.descent@homeaffairs.gov.au).

As soon as the original Australian citizenship certificates are received, or once the Australian Embassy in Kyiv and the Australian Embassy in Warsaw receive a scanned copy of the certificates from the Department of Home Affairs, the intended parents email the embassy to make an appointment for a passport interview. The Australian Embassy in Kyiv does not hold pre-passport interviews in war times.

After citizenship is granted, one Australian parent needs to travel overland from Ukraine to Warsaw, or to Vienna, without the baby, to collect the child’s passport and bring it back to Ukraine so that the child can leave.

Surrogacy is prohibited in Germany. Under German law the mother is the woman who gave birth to the child.

The father, however, is the man who has declared his fatherhood through an acknowledgement of paternity (§ 1592 BGB). For that reason it is possible to apply for German citizenship for a baby born through surrogacy in Ukraine by virtue of an acknowledgement of paternity, to which the surrogate has to give her consent. The marital status of the surrogate therefore plays a significant role in the exit process for German citizens.

At present the German Embassy in Kyiv follows the policy of issuing a temporary travel document for the baby (Reiseausweis als Passersatz).

Another particularity is that the baby first takes the surname of the surrogate under German law, transliterated according to ISO 9:1995. That name appears on the travel document and can later be changed to the surname of the intended father at the competent German registry office.

In times of war conflict there is no mandatory requirement for the surrogate to appear in person at the German Embassy in Kyiv. Instead, separate statements of the intended father and the surrogate on the acknowledgement of parenthood and on child custody are prepared in advance.

After coming home with the baby, there are two routes for the German intended mother to legitimate her parental rights:

• adoption of the child; or
• a Ukrainian court procedure to establish the legal fact of the kin relationship with the baby, which I can support in full. This court ruling is then recognised in Germany.

Surrogacy is prohibited under Austrian law, and the woman who gave birth is always considered the mother of a child.

It is nevertheless possible to obtain recognition in Austria of foreign decisions that differ from this principle. The Austrian diplomatic representation in Kyiv supports intended parents in taking the necessary steps in collaboration with the local authorities.

The Austrian Embassy in Kyiv has a separate checklist of documentation that has to be submitted to obtain an emergency travel document in the best interests of the baby.

Swiss national legislation bans surrogacy, and the woman who gave birth to the baby is deemed the child’s legal mother. The exit process is nevertheless feasible for Swiss citizens, provided that particular requirements are met.

A full package of documents from the surrogate mother, the fertility clinic and the maternity hospital is prepared after the birth. It is processed not by the Swiss Embassy itself, but sent in the original to the competent Swiss authorities. If the documents pass verification, a temporary travel document, a laissez-passer, is issued. A DNA test is also needed to prove the genetic link between the baby and the intended father.

After coming home with the baby, adoption of the child by the intended mother should be commenced in order to legitimate the parental rights of both intended parents in full. Another option is an application to a Ukrainian court to establish the kin relationship with the baby through a special court procedure; the resulting decree is acknowledged in Switzerland.

On 18 February 2019 the Ministry of Justice of Spain issued the Instrucción de la Dirección General de los Registros y del Notariado, sobre actualización del régimen registral de la filiación de los nacidos mediante gestación por sustitución No. 2367. It provides that, after the publication of that instruction, no further applications for the registration of birth of babies born through surrogacy overseas are considered by the Embassy of Spain unless a court decision on parentage is submitted.

In war times, however, Spanish intended parents are able to travel out on the basis of the Ukrainian birth certificate together with a package of accompanying documentation proving the lawfulness of the surrogacy process in Ukraine.

I can provide legal assistance with the preparation, translation and notarial certification of the package of documents that has to be filed for the citizenship process after returning home to Spain.

Under Belgian law parental rights have to be approved first by a Belgian local family court. For that reason the assistance of a Belgian lawyer is required at all stages of the exit process for citizens of Belgium.

A full package of documents is assembled to prove that the IVF and surrogacy procedures were performed in accordance with Ukrainian legislation. The Ukrainian lawyer prepares a legal opinion on the surrogacy programme, setting out the legal regulation of surrogacy in Ukraine and the details of the fertility treatment for the particular couple with reference to the relevant documentation, and summarising the lawfulness of the process in Ukraine in their case.

As a result of the court procedure, a Belgian passport is issued for the newborn.

Whether a foreign acknowledgement of paternity is valid in Sweden is examined under the Act (1985:367) on International Childbirth Issues (IFL). Paragraphs 7 and 8 state that, for an acknowledgement of paternity made abroad to be valid in Sweden, it must be confirmed by a court decision or by a valid confirmation in the country of residence or citizenship. In many countries, Ukraine among them, fatherhood of a child born through a surrogacy arrangement cannot be established by a court.

For children born through surrogacy in Ukraine, the intended father therefore has to sign a declaration of acknowledgement of paternity.

Where the surrogate mother is married, her husband could be considered the father of the child under the presumption of fatherhood. If the surrogate is married, her husband should therefore take part in signing the paperwork for the exit process. In all cases a personal visit by the surrogate to the Swedish consulate in Kyiv is needed.

All Swedish couples are recommended to prepare the acknowledgement of paternity through a court eight weeks after the birth, with the help of a Swedish legal counsel. After returning to Sweden, the adoption procedure takes place.