International Surrogacy

International surrogacy arrangements raise highly complex issues of family and immigration law. You will need to look carefully at the arrangements as a whole, take legal advice in the foreign country as to the legality of the surrogacy arrangement, consider the child’s immigration and nationality status and your ability to bring the child into the UK after the birth. 

For information about the definition of surrogacy and the law relating to surrogacy in the UK, see Surrogacy. 

Why opt for an overseas surrogacy arrangement? 

There are a number of reasons why intended parents may choose to enter into surrogacy arrangements overseas.  In the United Kingdom, surrogacy is heavily regulated and arrangements themselves are not binding.  Commercial surrogacy agencies cannot lawfully operate in the United Kingdom.  

Intended parents who enter into international surrogacy arrangements tend to do so in countries where there is a greater availability of surrogates and where local laws are more favourable.  

However, with overseas arrangements, complex issues of immigration and nationality law arise.

Who is the legal parent?

In countries where surrogacy arrangements are legal, a birth certificate will usually name you as the legal parents in that country. However that does not mean that you will be considered the legal parents under English law, nor that the child will be considered British at birth.

How will I bring my child into the UK?

It is essential that you obtain legal advice before the foreign surrogacy arrangement is entered into. 

In order to bring your child into the UK, you may have to apply to the nearest British diplomatic post for a passport for your child.  You may have to apply for your child to be registered as British. You may have to find a way to bring your child into the UK before an application is made within the UK. The position will be even more complicated if you are not British but only resident in the UK.

In all of these differing circumstances, you will need to obtain strategic legal advice in the UK on how to proceed, how to complete the documentation, given that it is going to be closely scrutinised. The process may take several months to process.  You will need guidance on how to plan ahead.

How do we become the legal parents?

The Human Fertilisation and Embryology Act 2008 provides the means by which the parental responsibility of the birth mother is removed and all parental rights are vested in the intended parent(s). This is called a Parental Order.

In considering whether or not to grant a Parental Order the Court has to be satisfied that:

• at least of the intended parents is domiciled in England;
• no more than reasonable expenses have been paid to the surrogate, unless authorised by the Family Court;
• at least one of the intended parents is a genetic parent;
• the child is living with the intended parent(s) at the time of the application;
• the parental order has been applied for before 6 months from birth.

What are “reasonable expenses”?

It is not illegal to pay a surrogate mother for her services in the UK. However if a Parental Order application is made, the court will need to authorise any payment made over and above the expenses she has reasonably incurred. 

How do I apply for a Parental Order?

An application for a parental order is made by the intended parents within 6 months of the child’s birth. The application is served on the surrogate (and her husband) and she must return an acknowledgment of service to the court.

The court will then list a Directions Appointment, at which a reporting officer will be appointed to undertake a welfare enquiry into the living arrangements for the child and the payments made to the surrogate. You will be directed to file a statement setting out your background and evidencing to the Court how you satisfy the criteria for a Parental Order, including dealing with any payments made to the surrogate. 

At the final hearing, if the court is satisfied that all the conditions have been met, the court will make a Parental Order. The Parental Order removes the parental rights of the surrogate mother and you will then have full legal responsibility for your child.

What problems can arise when obtaining a Parental Order?

The vast majority of Parental Order applications go through the Family Court without complications.  However problems are most likely to arise where intended parents have not taken legal advice, or familiarised themselves, either the eligibility criteria for Parental Orders or have not taken steps to acquire parental rights or legal parentage in respect of their child under English law.  

The most common difficulties are:

• Issues of domicile: particularly where neither of the intended parents were born in the United Kingdom, or were born in the United Kingdom but now live overseas;
• Breakdown of the relationship between the intended parents before a Parental Order has been applied for, or before the order has been made;
• Inability to find the surrogate after the baby has been born;
• Immigration difficulties where the surrogacy has been undertaken overseas.

There is a common and natural concern that surrogates change their mind and want to keep their baby. Thankfully, such cases are extremely rare in the United Kingdom.  It is important, however, always to remember that the Parental Order can only be made with the agreement of the surrogate and her spouse/civil partner. 

If it is not possible for the intended parent(s) to satisfy the statutory criteria for a Parental Order, alternative court orders should be considered to acquire Parental Responsibility for the child under English law. 

What else do you need to consider?

Intended parents must remember that where a child is born into or joins any family other consequences flow. For example, it will be necessary for the commissioning parents to consider making new Wills and to consider provision for a child in the event that one or both of them pre-decease the child. Indeed, some surrogacy agencies require that Wills are put in place before they will commence the surrogacy process, to ensure that adequate protection is in place for the surrogate in the event that something happens to the intended parents during the surrogacy.  It will also be important to ensure that any Wills take into account the fact that intended parents may not be considered legal parents of their child until a Parental Order is made.  

Why Dawson Cornwell?

International surrogacy arrangements involve highly complex issues of family and immigration law.

We will guide you through the process and we will do so at a competitively priced rate. We are experts at what we do. Our team is world recognised in the field. We have been heavily involved with the development of international surrogacy law in the UK for many years.  We have strong links with surrogacy lawyers abroad.