Preventing International Surrogacy Exploitation Act

This Act may be cited as the “Preventing International Surrogacy Exploitation Act”.

(a) Purposes.— The purposes of this Act are to—

(1) invalidate surrogate parentage contracts between prospective parents with citizenship or permanent residence in a foreign country and a surrogate mother in the United States; and

(2) impose criminal penalties on surrogacy brokers who commercially facilitate such invalid agreements.

(b) Findings.— Congress finds as follows:

(1) Currently, unrestricted surrogacies allow foreign nationals, including those residing in adversarial countries to the United States, to obtain a surrogate mother transported to or residing in the United States for the purpose of giving birth to a child.

(2) Upon receiving automatic United States citizenship, many infants born through an international surrogate contract are flown to adversarial countries to be raised abroad by their respective parent(s).

(3) Children born through an international surrogate contract remain eligible to vote in United States elections, access sensitive government positions, and eventually sponsor their respective parents for immigrant visas once they turn 21 years old.

(4) In the current unregulated environment, even foreign nationals in countries friendly to the United States are still susceptible to bribery and influence from adversarial countries' efforts to disrupt United States national security.

(5) Recent reporting has shown more than 107 Chinese-owned surrogacy agencies are currently operating in Southern California.

(6) Many countries, including Australia, Brazil, Britain, Canada, China, Denmark, France, Germany, India, Italy, Nepal, New Zealand, Portugal, Spain, Thailand, and Taiwan, have banned international commercial surrogacy altogether.

In this Act:

(1) Foreign national.— The term foreign national means an alien (as such term is defined in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101)).

(2) Immigration laws.— The term immigration laws has the meaning given such term in section 101 of the Immigration and Nationality Act (8 U.S.C. 1101).

(3) Prospective parent.— The term prospective parent means an individual who, directly or indirectly, enters into a surrogacy agreement to become the legal or custodial parent of a child birthed by a surrogate parent.

(4) Surrogacy agreement.—

(A) In general.— The term surrogacy agreement means a contract, agreement, or arrangement, without regard to whether it is oral or written or is direct or brokered, between 1 or more prospective parents and a surrogate parent, under which the surrogate parent agrees to become pregnant and give birth to a child, and, subject to subparagraph (B), to relinquish all parental rights and responsibilities to the prospective parent or parents.

(B) Presumption.— With respect to a surrogacy agreement under which a surrogacy parent agrees to become pregnant and give birth to a child, that does not expressly address parental or custodial rights, there shall be a presumption that—

(i) the surrogate parent has agreed to relinquish her parental or custodial rights; and

(ii) the contract, agreement, or arrangement is a surrogacy agreement if the contract, agreement, or arrangement is with one or more prospective parents who is a foreign national.

(5) Surrogacy broker.— The term surrogacy broker means any individual or entity that induces, arranges, procures, facilitates, or otherwise assists in the formation or execution of a surrogacy agreement.

(6) Surrogate parent.— The term surrogate parent means a person who agrees to become pregnant and give birth to a child, and to relinquish all parental rights and responsibilities to another person under the terms of a surrogacy agreement.

(a) In general.— Subject to subsection (b), a surrogacy agreement shall be void and unenforceable if the agreement is between a surrogate parent who is in the United States at the time of birth or who is a citizen or lawful permanent resident of the United States and—

(1) a prospective parent who is a foreign national; or

(2) a surrogacy broker that arranges a surrogacy agreement with a prospective parent who is a foreign national.

(b) Exception.— Subsection (a) shall not invalidate a surrogacy agreement between a surrogate parent and 2 prospective parents, if—

(1) the 2 prospective parents are legally married; and

(2) at least 1 prospective parent is a citizen or lawful permanent resident of the United States.

A surrogacy broker who knowingly or recklessly induces, arranges, procures, facilitates, or otherwise assists in the formation or execution of a surrogacy agreement that is void and unenforceable under section 4 shall be fined under title 18, United States Code, imprisoned for not more than 10 years, or both.

Legal custody of a child born pursuant to a surrogacy agreement that is void and unenforceable under section 4 shall be decided based on a determination of the best interests of the child under the law of the State where the surrogate parent resides, with no effect given to the surrogacy agreement or any other purported agreement, contract, or understanding concerning the custody of the child.

Notwithstanding any other provision of law, a foreign national who is a parent of a citizen of the United States born pursuant to a surrogacy agreement that is unenforceable under section 4, may not, by virtue of their parentage of such citizen, be accorded any right, privilege, or status under the immigration laws.

This Act shall apply with respect to surrogacy agreements entered into on or after the date of enactment of this Act.