SAFE KIDS Act Voids Surrogacy Contracts with Citizens from ‘Foreign Entities of Concern,’ Threatens Brokers with 1-Year Prison Sentence

The Stopping Adversarial Foreign Exploitation of Kids In Domestic Surrogacy Act, or the SAFE KIDS Act, is a massive federal intervention into commercial surrogacy contracts. At its core, the bill voids any surrogacy agreement if the surrogate parent is in the U.S. and the prospective parent is a citizen or permanent resident of a “foreign entity of concern.” This designation is a big deal because it means the federal government is stepping in to cancel private contracts based purely on the nationality of one of the intended parents, specifically citing national security risks and concerns about human trafficking and the misuse of U.S. citizenship laws (Sec. 2).

The Instant Contract Cancellation Clause

The most immediate, real-world impact of the SAFE KIDS Act is that it makes certain contracts instantly void and unenforceable (Sec. 4). If you are a U.S. citizen acting as a surrogate and the person paying you is from one of these designated foreign nations—which are defined using a defense-related list found in Title 10 of the U.S. Code—that agreement is null and void the moment this bill takes effect. Think of all the money, planning, and medical procedures that go into these agreements; the bill essentially wipes the slate clean, legally speaking. The only exception is if the prospective parents are legally married and at least one of them is a U.S. citizen or lawful permanent resident (LPR). This means if you are an LPR married to someone from a designated country, your agreement is still likely void unless you meet that narrow exception, creating major instability for binational couples who use surrogacy.

Criminalizing the Middleman

For anyone working in the surrogacy industry, this bill introduces serious new risk. The SAFE KIDS Act establishes criminal penalties for any “surrogacy broker” who “knowingly or recklessly” helps create or facilitate one of these newly voided agreements (Sec. 5). A broker found guilty faces a fine and/or up to one year in prison. The definition of “surrogacy broker” is broad—it includes anyone who “induces, arranges, procures, facilitates, or otherwise assists.” This could potentially impact not just the agency owners, but also coordinators, lawyers, or even administrative staff who facilitate the process, leading to a chilling effect across the entire industry as service providers scramble to avoid criminal liability.

Who Gets the Baby?

Perhaps the most heartbreaking and complicated provision deals with child custody (Sec. 6). If a child is born under a contract that is voided by this Act, the custody determination must be made solely based on the “best interests” of the child under state law, completely ignoring the original surrogacy agreement or any other alleged contract. This is a huge shift. Typically, contracts guide these situations, but here, the federal government mandates that the agreement be tossed out entirely. For the surrogate parent, this means the original promise to relinquish parental rights is legally discarded, placing the child’s future entirely in the hands of a state court judge. Furthermore, the bill creates a legal presumption that if a prospective parent is from a foreign entity of concern, the surrogate has already agreed to relinquish rights, even if the contract doesn’t explicitly say so (Sec. 3). This presumption could complicate things even further for the surrogate in a custody battle, despite the contract being voided.