Rich Vaughn Blog: ABA Resolution on International Surrogacy

ABA Recommends Protecting Children’s Citizenship Rights

As more and more intended parents seek to create families via international surrogacy, national governments have been forced to consider their rules for parental recognition and citizenship of the resulting children. All too often children born via international surrogacy have been denied citizenship in their parents’ home countries or their parents have been denied parental rights.

Conflicts between the laws of different countries have made for lurid and heartbreaking headlines. As we reported in 2014, the Supreme Court of Spain denied a gay couple’s petition for Spanish citizenship for their twin babies born via surrogacy in San Diego. Spanish authorities later overrode the Supreme Court ruling:

But a July 11 directive from Spanish authorities instructs Spanish embassies and consulates to resume Civil Registration of children born via surrogacy to Spanish intended parents, according to a report by La Vanguardia. “They are our children,” Spanish Minister of Justice Alberto Ruiz-Gallardón said of the children denied citizenship since the Spanish court’s February decision.

Last year we wrote about a case in which the European Court of Human Rights condemned Italian authorities for removing a child born to Italian parents via surrogacy in Russia and putting the child into guardianship. Although the ECHR sided with the parents and fined the Italian government, it stopped short of returning the child to its parents.

For the past several years, the American Bar Association ART Committee has been working on a recommendation to the U.S. State Department, as the U.S. representative to the Hague Conference on Private International Law (“HCCH”) to address conflicts between the laws of different countries that deny children the rights of citizenship and parental protection, often destroying families in the process. In February 2016 the ABA House of Delegates, the association’s policy-making body, approved the ART Committee’s recommendation that the HCCH focus its efforts on resolving international conflicts over children’s parentage and citizenship but leave regulation of surrogacy and ART up to individual nations.

Some legal scholars have urged the HCCH to issue a Convention on children and international surrogacy similar to its Convention on the Protection of Children and Co-Operation in Respect of Intercountry Adoption ratified in 1993. But the Adoption Convention, with the best of intentions, had many negative consequences. Its rigid qualifications have created years-long delays, and some countries have all but shut down international adoptions.

The Hague Adoption Convention, the ABA’s resolution continues, “is not an appropriate model for any Convention regarding surrogacy.” Surrogacy is a “medical solution to infertility,” regardless of whether the infertility is physiological or due to the fact that intended parents are a same-sex couple or single; surrogacy is a reproductive process. Adoption is a transfer of parental rights and responsibilities for an already existing child for which the state is responsible. In surrogacy, the intended parents and surrogate agree who will be parents to the child, before the child is born. The conflicts that result in “stateless children” are between nations, not the individuals involved.

The ABA resolution urges the HCCH to focus instead on the legal status of children and comity (cross-border recognition of parental authority) and “that any such international approach should allow for cross-border recognition of parentage judgments so that the parental relationship and citizenship status of all children, no matter the circumstance of their birth, will be certain….”

The regulation of surrogacy itself is best left to each individual country based on its culture and tradition. As I wrote in 2014, “regulation of the narrow issue of the surrogacy market itself will not address the structural challenges with international parentage decisions generally.”

The practical problems with international surrogacy are grounded in conflicts of laws and comity issues surrounding parentage, family structure, nationality, and immigration. Any international surrogacy convention should focus on a framework for open dialogue between nations about the reconciliation of these conflicts, particularly when the issues are not contested by the parties involved. In the end, the conflicts of family and immigration law are the issue, not surrogacy itself. Any convention should focus on these issues rather than try to regulate surrogacy as if it were comparable to adoption.

Rich Vaughn
Richard Vaughn

Attorney Rich Vaughn is founder and principal of International Fertility Law Group, one of the world’s largest and best-known law firms focused exclusively on assisted reproductive technology, or ART, including in vitro fertilization (IVF), surrogacy, sperm donation or egg donation. Rich is co-author of the book “Developing A Successful Assisted Reproduction Technology Law Practice,” American Bar Association Publishing, 2017.

Peiya Wang
Paralegal (律师助理)

Peiya Wang joined IFLG as a paralegal in 2015, where she manages surrogacy, egg donation and parental establishment cases and provides translation services for many of IFLG’s international clients. Peiya received her bachelor’s degree from Beijing Technologies and Business University, where she majored in Marketing. She moved to the United States in 2012 to attend Northeast University in Boston, Massachusetts, receiving a Master of Science degree in Global Studies and International Affairs in 2014. Peiya moved to Los Angeles in 2015 and received her paralegal certification from UCLA Extension. When away from the office, Peiya is a dragon boat paddler and a ballroom dancer, where she favors Rumbas and Cha-chas. She is fluent in Mandarin and English.

Luis Sosa

Luis R. Sosa joined IFLG as a paralegal in 2016, where he enjoys pursuing his passion for family and reproductive law. While working toward his bachelor’s degree at Florida International University, Luis worked as a paralegal and legal assistant for family law litigation firms in Miami and Washington, D.C. As a paralegal and case manager for IFLG, Luis, who is bilingual in English and Spanish, manages surrogacy, egg donation and other reproductive law cases. In addition to spending time with husband Randy and dog Marty, Luis enjoys being outdoors and appreciating the arts.

Toni Hughes

After receiving her B.S. in Business Management, Toni joined IFLG to pursue her dream of working in the legal field. As a Paralegal with over 10 years of experience in the assisted reproduction technology field, Toni is our Managing Paralegal, responsible for training and managing our paralegal staff. From drafting legal documents to assisting our clients with post-birth matters, Toni embraces the challenge of learning something new in this field each day. Besides spending time with her son, Jordan, Toni enjoys exploring new things, cooking, spending time with family and friends, and serving as a Youth Advisor for “Next Generation.”

Miesha Cowart
Financial Coordinator

Miesha Cowart joined IFLG as a financial specialist in 2014 following a successful career in development and business finance. Miesha previously worked for 10 years in the construction industry as a controller and for 13 years as Development Coordinator for the non-profit U.S. Fund for UNICEF. In her free time, Miesha works with “Next Generation” at her church. “They are my heartbeats!” she says of the youth in her community.


Kim has over 25 years of experience in the legal field and has worked exclusively in surrogacy and assisted reproduction law since 1999. Kim is a senior case manager of surrogacy and egg donation cases, and is also responsible for managing parental establishment cases and interacting with IFLG’s Of Counsel attorneys across the country. With three children of her own, Kim understands the importance of family and finds working in this area of law a rewarding experience.

Rich Vaughn

Attorney Rich Vaughn combined his personal passion as a father of twin boys born via assisted reproductive technology (ART) with more than 20 years of experience in business and technology law to build International Fertility Law Group. Today IFLG is one of the most successful and best-known law firms in the world focused exclusively on fertility law, helping thousands of intended parents through empathetic listening, compassionate guidance, and unmatched legal expertise. As an advocate for reproductive freedom, Rich also contributes his knowledge and time to improving the understanding and practice of ART law, most recently as a founder of and speaker at the first Cambridge University International Surrogacy Symposium held in June 2019, as immediate past chair of the American Bar Association ART Committee, and as a popular presenter to law schools, faculty and advocacy organizations all over the world.

Elizabeth Tamayo

Elizabeth received her Bachelors of Science degree in Criminal Justice from California State University of Los Angeles. Shortly after graduating, she continued her education at the University of California, Los Angeles where she obtained her Paralegal certificate. Elizabeth is fluent in Spanish and has been in the legal field since 2009. She is excited to be a part of the IFLG Team helping families realize their dreams.

Sunny Chien

Sunny joined IFLG as a paralegal in 2017, where she manages surrogacy, egg donation and parental establishment cases for many of IFLG’s international clients. She holds a Bachelor of Arts degree in Philosophy from California State University of Los Angeles, where she graduated cum laude. Sunny is bilingual in English and Mandarin and has extensive experience as a legal assistant and paralegal at Los Angeles-area law firms. She is excited to be part of the IFLG team. In her spare time, Sunny enjoys spending time with her family and their dog, going to the beach, cooking, and being outdoors.

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Molly O'Brien

Fertility law attorney Molly O’Brien began working in the field of assisted reproduction technology (ART) in 2005, at an egg donation agency and a surrogacy agency where she became familiar with all aspects of in-vitro fertilization, egg donation and the financial aspects of surrogacy. Since becoming an attorney in 2011, Molly has drafted and negotiated surrogacy, egg donation, sperm donation embryo donation agreements for hundreds of her clients all over the world.