S3101-119

1. Short title This Act may be cited as the Stopping Adversarial Foreign Exploitation of Kids In Domestic Surrogacy Act or the SAFE KIDS Act.

2. Findings and purposes Congress finds the following: Citizens of foreign entities of concern are exploiting commercial surrogacy laws in the United States. Many developed countries ban international commercial surrogacy altogether. The United States, however, presently allows even citizens of foreign entities of concern to solicit and pay financially-distressed Americans to give birth to their children in the United States and then send these infants abroad. This presents an acute national security threat, and recent events in Arcadia, California reveal that surrogacy is even being used to facilitate human trafficking. This Act— acknowledges that foreign persons (including nationals of foreign entities of concern) are abusing surrogacy agreements to exploit women in the United States and to obtain United States citizenship for their children; invalidates surrogate parentage contracts between prospective parents from foreign entities of concern and a surrogate mother in the United States; and imposes criminal penalties on surrogacy brokers who commercially facilitate such invalid agreements.

3. Definitions In this Act: The term foreign entity of concern means any foreign nation listed under section 4872(f)(2) of title 10, United States Code. 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. 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. With respect to a contract, agreement, or arrangement, without regard to whether it is oral or written or is direct or brokered, under which a surrogate 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 the surrogate parent has agreed to relinquish her parental or custodial rights, and that the contract, agreement, or arrangement is a surrogacy agreement, if the contract, agreement, or arrangement is with a prospective parent who is a citizen or permanent resident of a foreign entity of concern. 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. 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.

4. Certain international surrogate parentage contracts void and unenforceable 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— a prospective parent who is a citizen or permanent resident of a foreign entity of concern; or a surrogacy broker who arranges a surrogacy agreement with a prospective parent who is a citizen or permanent resident of a foreign entity of concern. Subsection (a) shall not invalidate a surrogacy agreement between a surrogate parent and 2 prospective parents, if— the 2 prospective parents are legally married; and at least 1 prospective parent is a citizen or lawful permanent resident of the United States.

5. Commercial facilitation of foreign surrogacy prohibited; penalty 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 1 year, or both.

6. Custody of child when international surrogate parentage contracts are void and unenforceable 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.