There is little doubt that surrogacy is on the rise and is increasingly becoming an option for parents who are unable to conceive naturally. For many reasons, parents are now seeking professional surrogacy services abroad. International surrogacy is however, a complex area. Unfortunately, there is no international law governing surrogacy and the laws vary widely from country to country. Consequently, proceeding with surrogacy services abroad can end up being a potential minefield for parents. Parents who have travelled abroad for a surrogacy arrangement are often unaware that the process for getting their child back to the UK can be very long and complicated and can take several months to complete. Parents can also be unaware that they may not automatically be the legal parents of their children under UK law and that steps need to be taken in order to secure their position on their return home.
If you are considering embarking on surrogacy in a foreign country, it is very important for you to seek specialist legal advice in the UK and in the country you are travelling to, as well as in any other country with which you are connected at the earliest opportunity. Planning ahead and understanding all of the legal issues is essential.
What to think about before undertaking international surrogacy
How surrogacy works in the destination country
- Is surrogacy legal in the destination country? Surrogacy is only legal in a small number of countries. It is illegal in countries such as France, Germany, Italy, Pakistan, Saudi Arabia and many Islamic countries. India, a previously very popular country, has since November 2015 suspended surrogacy services for foreign nationals. In countries such as Canada, Australia, Ireland, Spain, Denmark and Belgium (and the UK), surrogacy is legal provided the surrogate mother is not paid, or only paid reasonable expenses. Surrogacy is legal is some US states and in Russia, Georgia and the Ukraine. In some countries surrogacy may only be legal for opposite sex married couples or couples who have been married for a certain period of time.
- What regulations are there of the services you plan to use and are the services well established? Are they safe and ethically run? Surrogacy is a lucrative business for clinics and individuals providing surrogacy services. Coming from the UK, the USA or Western Europe, where the medical sector is highly regulated, it is easy to take regulation for granted, however it is not the case that standards and safety are the same everywhere. There have been several cases where it has later come to light that there is no genetic link between the intended parents and the child born through a surrogacy arrangement. There have also been cases of foreign clinics providing fraudulent documents for the surrogate mother, causing long delays in waiting for documents to be issued in order for the child to return to the UK. It is therefore essential that you research the clinic carefully to ensure that it is a reputable clinic, preferably one which is regulated and registered and / or licensed with the national authorities.
- Have you budgeted properly? The costs for entering into surrogacy abroad can often be significantly more expensive than expected and parents can often be caught out by unexpected ‘extras’. Some clinics seem to offer very low rates, but these might not include things like blood tests, consultations, medication etc. You will also need to budget for accommodation and living expenses in the destination country, often for several months, as well as for flights and specialist medical insurance. You may also need to budget for the cost of taking time off work if you need to take unpaid leave. Ideally, it is best to have a healthy contingency fund in case anything goes wrong.
Returning home with your child – immigration issues
Unfortunately, there is no single legal process governing immigration law on surrogacy in the UK. The routes for bringing a child into the UK differ depending on the country where the child was born and whether or not the child has acquired British nationality at birth. Consequently, it is important to ‘seek early legal’ advice about the following and to plan carefully about the correct applications to make in order to bring your child home:
- Whether or not your child will acquire British nationality at birth. Even if one or both intended parents are British, the child may not necessarily be British at birth. Whether the child will be born British will depend on the circumstances of the surrogacy arrangements that took place. If your child is born outside the UK and has a British legal parent, he or she will usually be British ‘by descent’. For example, this may be the case if the surrogate is unmarried or widowed / divorced and the intended father is British, is the biological father and is able to pass on his British nationality (e.g. is a British national otherwise than by descent). The rules are however complicated and there are some unusual exceptions. If the surrogate is married, the child will usually not be British.
- If the child is born British, what steps need to be taken to apply for a British passport for the child so that the child can travel home and how long this will take. Applications need to be made to the nearest British embassy in the destination country. These applications can be complex and require comprehensive explanation together with supporting documentation of the particular surrogacy arrangement to evidence that the child has been born British. This can be a lengthy process, sometimes taking several months.
- If the child is not born British, what steps need to be taken and how long will this take? This will usually involve registering the child as British, resulting in a Certificate of Registration being issued which can then be used to apply for a British passport for the child. Again, this is a complex, detailed and lengthy process requiring supporting documentation of the surrogacy arrangement. Consideration will need to be taken as to whether the registration application should be undertaken in the destination country or from within the UK. If the application is to be made from within the UK, thought will also need to be given as to whether, and if so how, the child will be bought back to the UK in the interim. This might, for example, involve applying for and travelling on a foreign passport if the child has acquired foreign citizenship at birth, although this does risk the child being refused admission to permanently reside in the UK. Another option is to apply for an entry clearance visa stamp before travelling, which takes the form of a stamp in a foreign passport, or a freestanding travel document if the child has no other passport. Again, this application can take some time.
We can advise you on the options available for you to bring your child back to the UK.
Securing legal parentage for your child
It is important to bear in mind that the foreign legal position in respect of parentage is often not recognised in UK law. Under English law, the surrogate is the legal mother of the child even if she has no genetic connection to the child. This is the case even if you are the biological parents in the country where your child was born and even if your names appear on the local birth certificate. The surrogate will remain the legal mother unless and until a Parental Order or an Adoption Order is made in your favour. If the surrogate is married or has entered into a civil partnership, then her husband or civil partner will be regarded in English Law as the second legal parent of the child (unless he / she didn’t agree to the surrogacy arrangement). If the surrogate is not married or in a civil partnership, it is possible for the intended father to be treated as the legal father if he is the biological father of your child or if he is nominated as the other legal parent when your child is born.
Without a Parental Order (or an Adoption Order) conferring legal parentage to you, you will not have Parental Responsibility for your child under English Law. Parental Responsibility gives you the authority to make all the crucial decisions about your child’s upbringing. Consequently, where there is no Parental Order in place, issues can sometimes arise, for example, in respect of giving permission for urgent medical treatment for the child.
In order to confirm your status as the legal parents of your child in the UK, you will need to apply for a Parental Order within 6 months of your child’s birth. This will transfer legal parentage to you and prompt a new birth certificate to be issued. It will also extinguish the legal parentage (and consequently the Parental Responsibility) of the surrogate mother and her spouse if applicable. The application for a Parental Order will be made for a High Court Judge, who will scrutinise certain criteria in order to determine whether a Parental Order can be made under UK law. See here for the criteria and the process involved in applying to the Court.