Travelling abroad to enter into a surrogacy agreement is becoming increasingly common, but it is as legally complex as it is emotionally challenging. Surrogacy is legal in a relatively small number of countries. In some, such as India and Nepal, laws have been tightened in recent years due to perceived abuses by commissioning parents. In the UK it is possible, but cannot be a commercial transaction (“reasonable expenses” only may be paid). It is absolutely essential that you get advice on the processes involved at an early stage. Many couples leave immigration and nationality questions to one side while they choose a clinic and take advice about a Parental Order; it is far better to consult with lawyers who understand all aspects of international surrogacy.
First of all, consider your own status; it makes a significant difference if you are a British citizen by birth, adoption etc, or British by descent having been born overseas. It is further complicated if you are not British, but are a foreign national settled in the UK, or if you are an EU citizen with permanent residence here. Your domicile will also be relevant, so take advice if you are British but have lived overseas for an extended period.
Next, what is your civil status? Single, married, civil partners, or long-term cohabitees – each situation raises different possibilities.
You must then consider the precise nature of the proposed surrogacy arrangement:
- Partial surrogacy is where the surrogate mother is the genetic mother, whose eggs are fertilised with sperm from the commissioning father
- Total surrogacy occurs where both ovum and sperms are from the commissioning parents
In either case, a genetic link exists between the child and at least commissioning parent. If there is no genetic link – that is, no gametes from the commissioning couple are used – a Parental Order cannot be made in favour of those parents. Adoption would be their only option – an expensive and time-consuming process.
Under UK nationality law, the default position is that the mother and father of a child are considered to be the woman who carries and gives birth to the child and her husband. Therefore, a married surrogate mother may not be your best option.
If your child is born to a surrogate who is single (unmarried, divorced, widowed – evidence may be required), then the child has an automatic claim to British nationality if the commissioning father is British, has a genetic link to the child and is able to pass on his nationality (e.g. is a British national by birth). In this case, a first British passport application may be made for the child.
However, it can take several weeks, if not months, to process applications for children born through surrogacy overseas, so you may face an extended stay overseas once your child is born. All applications are processed in the UK: the British Embassy or High Commission cannot offer assistance.
If the child gains the nationality of its country of birth (as in the USA, for example) it is often quicker to obtain a US passport to facilitate travel back to the UK, and then deal with the British nationality case here. Doing things this way also speeds up the Parental Order application, which must usually begin within 6 months of the child’s birth.
What if the surrogate mother is married? Where it can be shown that her husband did not consent to the arrangement, you may be fine, but this will be difficult to prove. In all other cases, the child will not automatically be British, so an application to register as a British citizen, at the discretion of the Home Secretary, will be required. This can be a lengthy process, further delaying the entry of the child into the UK, and of course is not available to parents who, for example, are not British citizens themselves. In that scenario, a visa application will be required on behalf of the child to facilitate entry to this country.
Latitude Law’s specialist migration solicitors work closely with family practitioners experienced in obtaining Parental Orders for couples who have entered into a surrogacy arrangement overseas. If you would like to consult with experienced lawyers about the citizenship and immigration aspects of surrogacy call Latitude Law on 0161 234 6800 (Manchester & London) or 0151 305 9600 (Liverpool).