International surrogacy: UK High Court awards parenthood to couple living in France

girl with paint on her hands_bIn its latest published international surrogacy decision, the High Court has awarded a British-French couple living in France a parental order in respect of their son born through international surrogacy. The case makes clear that you don’t need to live in the UK to get a parental order, sets out the rules on domicile for expatriate parents, and issues a warning about pitfalls under UK adoption law.

The case of CC v DD (2014) involved a British mother and French father (represented by our team) who conceived through surrogacy in Minnesota, USA. Under UK (and French) law the US surrogate was the legal mother, and the child was neither British nor French. The parents (who had already secured their parentage in the US through a series of orders including a step-parent adoption order in favour of the intended mother) applied for a parental order to resolve their parentage in the UK and to acquire British nationality.

Could the parents, who lived in France, get a UK parental order?

As the parents lived in France, they could only obtain a parental order if the mother retained her English ‘domicile’. Domicile involves, not just citizenship or residence, but a much wider assessment of where a person’s permanent home is. The court heard independent argument from a government-appointed lawyer, who backed our case that the mother was still UK domiciled. Mrs Justice Theis agreed that, because the British mother had a clear intention to return to live in the UK and was tied to France only by her husband, she had not acquired a domicile of choice in France which would have displaced her UK domicile of origin.

Various cases (including AB v SA (2013)) have previously considered domicile issues for surrogacy parents who have settled in the UK but had their origins elsewhere. This is the first published surrogacy case to consider how the law works for parents who have left the UK. We are pleased to have this clarity, as we know it will be of comfort to the many other expatriate parents we work with who wish to secure their UK legal position.

The perils of using US adoption as a remedy for surrogacy

The other new issue in this case was that the parents had conceived in a state which ratified US parentage by means of a US step-parent adoption order. The High Court urged caution to other parents, since UK adoption law makes it a criminal offence for parents to apply for adoption overseas without prior approval from the UK authorities. In fact in this case there was no criminal offence because the parents lived in France so they were not caught by the law. However, the same would not be so for other UK-resident parents who obtained a US adoption order.

Indeed, in another case published together with this one (Re G and M (2014)) Mrs Justice Theis dealt with a UK-resident same sex couple who had obtained a US adoption order in breach of the law, albeit entirely innocently. She therefore decided to draw this issue to the attention of the Department of Health, noting that UK law is currently criminalising parents through surrogacy who wish to act in their child’s best interests.

It is yet another example of how inappropriate the UK’s surrogacy laws are for handling the modern realities of global surrogacy, and how desperately reform is need.

Find out more about international surrogacy law and our surrogacy law services. Find out more about how we think surrogacy law needs to change.

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