International surrogacy is a fast-growing area, and increasingly popular for intended parents resident in the UK, who are unable to find a surrogate mother in this country.
In this interesting article reporting the findings published in Bioethics, a medical journal, surrogacy is not without controversy in some countries. It is absolutely essential for prospective parents looking abroad to understand that the surrogacy agreement will not only need to comply with legal requirements of the country in which the child is born, but also those of the UK.
For example, there are many countries where the surrogate’s name will not appear on the birth certificate but this makes no difference under UK law, where the surrogate mother will continue to be considered the legal parent until the parental order is final.
This means prospective parents need to have a full understanding of surrogacy law in two countries, as well as bearing in mind any potential complications in bringing their baby back to the UK.
In surrogacy cases, the child will automatically be British only if the surrogate mother is unmarried, the intended father is genetically related to the child and the father is allowed to pass on British nationality. In these relatively straightforward cases, the parents only need to apply for a passport.
In other situations, a host of factors will determine the course of action the couple need to take, including:
- Marital status of the surrogate mother;
- Genetic relationship of the intended father/mother to the child;
- UK immigration status of the intended couple i.e. are one or both British citizens/permanent residents? If not, what type of UK visa do they hold;
- Can the baby acquire citizenship in its birth country?;
- Legal status of surrogacy in the birth country;
- Likelihood of a Parental Order being granted in the UK;
- Has a court recognised the intended parents as the baby’s legal parents?;
- Whether the intended parents are in a same-sex or heterosexual union;
- Domicile and financial status of the intended parents;
- Does the baby live with intended parents?
1,000 babies stranded
It is worth bearing in mind that in a very worst-case scenario, the baby may not be eligible for British citizenship or the citizenship of its birth country. Only last month the Guardian reported the case of 1,000 babies born to surrogate parents were still stranded in Russia due to travel restrictions related to Covid-19.
Without a passport of any kind, there is the potential risk of the baby being stranded abroad.
This means that advance planning is absolutely essential in cases where your baby is born abroad. There are numerous variables and no two cases are the same. You can find a general guide to the three main routes of bringing your baby back to the UK in the following blog ‘International Surrogacy and how to bring baby back to the UK’.
Finally, it is important to remember that nearly all the factors relevant to a UK-based surrogacy will also apply to an international surrogacy, and so you are advised to read our Surrogacy page for more information. However, immigration and family solicitors from our Forming Families team will work together to ensure the two aspects run in tandem, as smoothly as possible.
How we can help
- Legal advice to those considering surrogacy in different countries on general nationality and immigration issues;
- Legal advice on specific immigration and nationality issues relating to particular countries;
- Help you apply for British citizenship for your child;
- Help you apply for a British passport for your child;
- Legal advice and guidance to guide you through the UK application process if your child needs a visa to come to the UK;
- Prepare and represent you at an appeal if your child’s visa application has been refused
- Apply for a Parental Order to transfer the legal parentage from the Surrogate mother (and her partner, if she has one) to you as intended parents so you can be recognised as the legal parents of your child in the UK
If you would like to have an initial discussion about surrogacy arrangements please contact me at Bishop and Sewell on email firstname.lastname@example.org or by telephone 020 7091 2707.
Our specialised Forming Families team
Bishop & Sewell’s specialised Forming Families team will be presenting at the Growing Families Webinar “UK Legal & Citizenship Issues” on Sunday 6th September 2020. Please click here to find out more.
Growing Families is a consumer-based non-profit organisation focused on bringing together surrogates, donors, intended parents and families in order to network, share their stories and learn about best practice in surrogacy and donor arrangements. The Forming Families Team at Bishop & Sewell have partnered with Growing Families as one of their World-Class Fertility Experts.
The webinar will play host to several worldwide Fertility Experts, including Karma Hickman and myself from our Forming Families team at Bishop & Sewell.
Visitors are able to book one-to-one appointments with the attending experts, including our Forming Families Team by emailing email@example.com. I will be offering one-to-one advice about UK Parentage Law and the Parental Order Application process and Karma Hickman will be offering one-to-one advice about Immigration Law and Citizenship implications and how to bring your baby home following an overseas surrogacy arrangement.
When looking for help with fertility issues it can be a daunting task trying to find information. This event provides a safe and supportive space for people to obtain the information and advice they need, in a discreet environment.
Our Forming Families team is made up of experienced, approachable lawyers who can advise on a range of issues arising from fertility and surrogacy law including:
- Surrogacy arrangements and parental order applications
- International aspects of surrogacy and adoption, including immigration and nationality issues
- Fertility legalities.
We pride ourselves on offering clear and practical advice in a supportive, accessible way. We are also uniquely placed to help those considering international options, as our team brings together lawyers from our Family and Immigration departments. Both departments are listed in the UK’s top legal guides Chambers and Legal 500. Louise Barretto and Karma Hickman are also individually recognised, with particular reference to Karma’s work in the field of surrogacy.
The above is accurate as at 18 August 2020. The information above may be subject to change during these ever-changing times.
The content of this note should not be considered legal advice and each matter should be considered on a case by case basis.