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:
In either case, a genetic link exists between the child and at least the 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.
To speak to one of our solicitors about a surrogacy arrangement and how to make a successful application, call us today on 0300 131 6767 or complete our enquiry form and we will get straight back to you.
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The expert solicitors at Latitude Law can provide expert advice on all aspects of international surrogacy. We can provide detailed guidance about legal requirements and assist you in preparing the correct passport, citizenship or visa application for your child.
Latitude Law has significant experience of advising couples and individuals considering international surrogacy. Working with trusted family law specialist, we have assisted clients with tackling some of the most complex issues that can arise from these arrangements.
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As the requirements for acquiring British citizenship for surrogate children are extremely complex, to ensure success, you should seek specialist advice from an immigration solicitor before you proceed with an application. Latitude Law’s specialist lawyers can advise you about your individual requirements and ensure that your supporting documentation is compliant with the very latest immigration rules.
The Immigration Rules on international adoption have always been complex, because there is such a wide variety of potential adoption scenarios across borders, ranging from formal adoptions pursued via professional adoption agencies, to family arrangements which come out of often difficult circumstances, for example relatives abroad unable to care for all their children.
