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According to UK law when a child is born via surrogacy the surrogate who gives birth to the child is recognised as the child’s legal mother. If the surrogate is married, the surrogate’s husband is the child’s legal father. The intended parents must apply for a parental order in order to be recognised as the child’s legal parents and remove the parental rights of the surrogate and her husband.
The law says that court can only make a parental order if at least one of the intended parents is domiciled in the UK. The court has no discretion to make a parental order if, in a situation, where neither parent is domiciled in the UK, regardless of the circumstances.
Domicile is a legal concept and is all about where you have your roots and permanent home.
Domicile of origin – We all have a domicile of origin, which is where we are born. There is a strong emphasis on a person’s domicile of origin and the burden of proof is on them to show that they have left their domicile of origin behind for a new domicile of choice.
Domicile of choice – A person may have a new origin of choice if they have made their permanent home in a country that is not their domicile of origin.
It is important to note that whilst you may be resident in one country but domiciled in another, a person can only ever have one domicile at a given time.
I was born in the UK and live in the UK
If you were born in the UK and live in the UK there is an assumption that you are domiciled here.
I was born in the UK but am living abroad on a temporary basis
If you do not intend to make your permanent home abroad then you may have retained your domicile of origin in the UK.
I was not born in the UK
You may have chosen the UK as your domicile of choice if you are living here and your intention is that it will be your permanent home. If you don’t intend to live in the UK permanently or indefinitely, then you have not changed your domicile.
The court will look at all the circumstances of a person’s life when considering whether they have changed their domicile to a domicile of choice. Whilst the court has told us that no fact, event or act is too trivial to take into account, there are some significant facts that may indicate to a domicile of choice:-
You may be more likely to have chosen to move your domicile to the UK if you have indefinite leave to remain or, even better, have naturalised and secured British citizenship.
If you are not domiciled in the UK for tax then you are unlikely to be domiciled in the UK for any other purpose.
Do you have assets, such as property or business interests, in the UK or in your domicile of origin? Where are you employed?
Do you speak good English? Do you have ties to your local community and area?
If you or your partner are not domiciled in the UK then the court cannot grant you a parental order. The surrogate, and her husband if she has one, would remain your child’s legal parents and retain parental responsibility.
If you have had a child via a surrogacy arrangement but cannot apply for a parental order then the only way to become your child’s legal parents and extinguish the surrogate and her husband’s parenthood would be adoption.
Another way to gain parental responsibility for your child would be to apply for a residence order or special guardianship order. You would then be able to make legal decisions for your child, but it would not extinguish the surrogate’s parental rights or recognise you as the legal parent.
If you intend to have a child through a surrogacy arrangement it is very important to seek legal advice as early as possible, especially if there may be a question over your domicile. Please contact our Specialist Surrogacy Solicitors to discuss your own unique circumstances.
This blog was originally written by Lauren Guy.