Guide to international surrogacy

Surrogacy allows intended parents to bring up a child when they are unable to have children themselves, but international surrogacy can be a complex system.

The process for getting your child back in to the UK can be a long and complicated one which can take several months to complete. If you are looking to embark on surrogacy in a foreign country then it’s important to seek specialist legal advice in the UK before you make any further arrangements.

As well as obtaining a passport for your child, you will also need to apply for a parental order to transfer legal rights from the surrogate mother to you and your partner. Be aware that there is only a short, fixed period in which you can apply for a UK parental order.

Surrogacy clinics and hospitals

Surrogacy is legal in a small number of countries. It’s important that you research your clinic thoroughly to ensure that you are dealing with a reputable and responsible organisation, as several cases have arisen where there is no genetic link between the intended parents and the surrogate child when there should be. We therefore recommend that you work with a reputable clinic that is able to satisfy you at an early stage that the child is genetically linked to you.

As part of the surrogacy process granting and recognising your child’s British nationality, UK Visas and Immigration or Her Majesty’s Passport Office may need satisfactory proof of a genetic link between parents and child, and in some instances you may be required to provide further DNA evidence.

British nationality and passport facilities

Under UK nationality law, the parents of a child are considered to be the woman who carries and gives birth to the child and the husband she is married to at the time of the child’s birth. This means that even if your names appear on the local birth certificate, a baby born to a foreign national surrogate mother who is married will not be automatically eligible for British nationality. In this case you will need to apply to the Home Office for registration of a child under 18 as a British citizen before applying for a UK passport for the child. For all questions it is strongly recommended to seek the advice of from one of our specialist UK immigration lawyers.

Parental rights

Even if your child is entitled to British nationality and a British passport, you will still need to apply for a UK parental order to transfer legal rights from the surrogate mother to you and your partner.

There is only a short, fixed period in which you are able to apply for a parental order. To gain a UK parental order, the surrogate mother must supply her full and informed consent to:

  1. Hand over the child to the commissioning parents
  2. For a parental order to be issued, assigning all paternity over to the commissioning parents and absolving the surrogate mother’s responsibility for her child.

This consent can only be given six weeks after the child is born. It must be provided in writing and notarised. Once the child is older than six months, you will be unable to apply for a parental order. The child does not necessarily have to be in the UK for parents to begin the parental order application process.

Refer all questions about this to one of our UK solicitors who specialise in surrogacy practices.

List of documents required when applying for a passport without registration in surrogacy cases

Where the surrogate mother is not married they will need to apply directly for a passport without registration. These documents should be provided in original format.

Her Majesty’s Passport office requires the following key documents:

  1. Completed passport application form.
  2. A completed payment authorisation and two photographs of the child taken within the last month, and consistent with UK passport photographic requirements.
  3. Documentary proof of the biological father’s British nationality. The father will have British Citizenship eligibility. Examples of proof are birth certificate, registration/naturalisation certificates.
  4. Original passports of both commissioning parents.
  5. Evidence of being the biological father.
  6. A surrogacy agreement on official headed paper, which has been signed by all parties and dated.
  7. Document signed by the surrogate mother confirming that the surrogate mother gives up all parental responsibility and custody of the child.
  8. Child’s birth certificate issued by local authorities.
  9. Photographs of commissioning parents and the baby from birth to current time.
  10. Antenatal medical reports and scans from the surrogacy clinic/hospital covering the duration of the pregnancy.
  11. Letter from Head Doctor at the surrogacy clinic/hospital setting out details of the case.
  12. Identity documents for the surrogate mother (passport, identity cards, driving licence).
  13. If the surrogate mother is divorced, the provision of marriage certificates and divorce papers.

OR

If the surrogate mother is a widow, then marriage certificate and husband’s death certificate.

OR

If the surrogate mother has never been married, then an affidavit stating she is single (never married) along with supporting documents.

Payments for overseas surrogacy

Most international surrogacy cases require payments of more than expenses to the surrogate and the agency involved. The court is required to authorise any payments before issuing a parental order.

One of the first international surrogacy cases the High Court dealt with still sets the framework for the court’s approach to authorisation of payments. X and Y (foreign surrogacy) 2008 - this was the first UK surrogacy case to authorise an international commercial surrogacy arrangement. A British couple had paid a Ukrainian surrogate €27,000 for carrying twins. The High Court authorised it because the intended parents had behaved honestly, the surrogate was not exploited and the welfare of the children demanded it, otherwise the children would have been ‘marooned stateless and parentless’ in the Ukraine.

Great care is needed in respect of surrogacy arrangements involving any kind of international element. It is strongly recommended all parties obtain legal advice before proceeding.

Domicile and jurisdiction

The court can only make a parental order if one of both of the commissioned parents is domiciled in the United Kingdom, Channel Islands or Isle of Man. Domicile relates to not only where you are living or your citizenship status, but to where your permanent home is. Changing domicile is not something that can be done easily, and doesn’t relate simply to where you are living but also what your long term intentions are.

If you are British and living abroad, and wish to obtain a parental order then you will need to confirm your links with the UK and intention to return.

Your next steps

Whilst international adoption and surrogacy is a highly specialised area of the law, we can provide you with legal and personal support required to complete the process. We are able to provide assistance with:

  • Advice to families considering international surrogacy and bringing the child back to the UK.
  • Provision of advice in the country in which the child is born, and all procedures are completed in accordance with the laws that country to ensure a smooth transition from that country back to the UK with the child.
  • Representation of families throughout the Parental Order proceedings in England and Wales to ensure that the child’s parents are recognised.

UK based families who are considering international surrogacy must explore all the legal issues in the country the surrogacy arrangement is to be entered into, and the impact of immigration laws in the UK.

If you would like to discuss an international surrogacy arrangement, or if you are thinking about any surrogacy arrangements then speak with our experienced surrogacy solicitor, Jeetesh Patel.