Family Law, Health Care / Medicine, Kids

What Happens When A Country Won’t Let You Take Your Baby Home?

Changing local laws can disrupt a pregnancy already underway leaving babies trapped in foreign countries.

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Baby's scratching his noseHeartbreak. That’s the short answer. Unfortunately, that’s the situation that three Israeli fathers are in due to the changing and complicated legalities of international surrogacy. (Here’s a picture of one of the babies. So cute!)

There Are Many Places You Should Not Go For Surrogacy. Most people in the United States use surrogates who also live and deliver babies in the United States. But for people who can’t afford to pay for an American surrogate, or for those who don’t live in the United States, a surrogate in a different country may be the only way they can go through the process.

Of course, it’s no secret that many countries have banned individuals and couples from hiring a surrogate in any context. Other countries may not technically prohibit surrogacy, but they still make it hard for the parents of newborns to get back home with their new family members. And still other countries simply ban foreigners from entering surrogacy arrangements.

Mexico Is One Of The Hostile Countries. I have written before about surrogate-born babies being stuck in Mexico. In that case, two gay dads were trying to take their “tripling” babies back home to New Zealand. Now, three single dads are having similar difficulties taking their babies homes. According to news reports, these three Israeli dads are stuck in Mexico after traveling to the country to work with Mexican surrogates to achieve their dreams of parenthood.

Why did the Israeli dads use Mexican surrogates? Because although surrogacy is legal in Israel for heterosexual, married couples, it is still not permitted for same-sex couples or singles. (While I won’t use this opportunity to meddle in Israeli politics, I fail to see how that prohibition helps Israel much.) And for some time, Mexico did permit surrogacy arrangements involving same-sex couples or single individuals. As you’ll see below, complicating the issue is that in 2015, Mexican law changed to no longer allow any foreign intended parents — same-sex couples, singles, or otherwise — to use a surrogate in Mexico.

So Much Confusion. So here is where the situation becomes unclear. Israeli attorney, Gil Ovadia Leibowitz, has stated that in 2015, he received “approval for 30 couples to enter the surrogacy process in Mexico. Since then, mothers were found, and all the permits were signed.” In short, Leibowitz notes that 30 surrogacy applications were approved by Mexican government officials, despite the change in Mexican law in 2015.

But Leibowitz attributes the current problem solely to a change in the identity of the relevant Mexico public officials. He notes that “everything is because of a new director in the local Interior Ministry who showed up and decided to make changes with an inappropriate framework.”

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Interestingly, one of the fathers has reported that the failure of Mexican officials to follow through on the previously-approved surrogacies is due to a recent case of bribery. That case allegedly involved surrogate born twins trying to leave Mexico. But regardless of the reason, Mexico has refused to issue birth certificates to the children that would allow them to leave the country.

More Stranded Babies Ahead.  Unfortunately, these three fathers are not the only concerned parents or parent-to-be. It is reported that there are eight more Israeli parents with pregnant Mexican surrogates, still awaiting their children’s births.

No One Wins When The Rules Are Changed Mid-Game.  Given the factual lack of clarity involved in these cases, I’d like to make a broader point about holding babies hostage to domestic law. Obviously, every country can try to have and enforce its own rules about surrogacy. In some rare cases, those rules may violate international law. But for the most part, a wide array of surrogacy policies can stand legal muster.

And I understand the fears and reasoning behind regulations prohibiting surrogacy. But in these cases, it’s not clear that the intended fathers knew that they were engaging in surrogacy in a country where it was presumptively illegal, or that they hadn’t been granted exceptions to the prohibition. Certainly, it is to no one’s benefit to keep the babies and parents in Mexico, unable to return to their home country. Nor is it preferable to make these children permanent orphans. At the very least, exceptions should be made for these babies.

Moreover, it is obvious that once documents are signed and expectations are set, a change in the identity of public officials — or a bribery scandal, as the case may be here — should not affect the rights of the intended parents. Let’s not change the rules in the middle of the game, wait I mean pregnancy.

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Ellen TrachmanEllen Trachman is the Managing Attorney of Trachman Law Center, LLC, a Denver-based law firm specializing in assisted reproductive technology law, adoption, and estate planning, and Co-Director of Colorado Surrogacy, LLC, a surrogacy matching and support agency. You can reach her at babies@abovethelaw.com.

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