British nationality and UK immigration law after surrogacy

Often the first questions UK parents ask about international surrogacy are 'how do I bring my child home to the UK?', 'how long will I have to stay overseas after the birth?' and 'how do I make sure my child is British?'.

Getting home

boy on suitcaseUK immigration and nationality law on surrogacy has grown up haphazardly, with pioneering parents creating a variety of paths for others to follow.  It means that there is no single legal process, and the best and quickest route home will depend on your particular personal circumstances and the destination country.

Bringing a surrogate child back from the USA or Canada
Children born in the USA or Canada are always American/Canadian citizens and UK parents can typically obtain a US/Canadian passport within 1-3 weeks.  Many parents in practice travel back to the UK using their child's foreign passport, but this carries some risk as there is no right to admission on arrival in the UK. 

Parents can apply for a British passport or an entry clearance visa stamp in the US passport before travelling, although this takes longer.  A British passport is generally only available immediately if the surrogate is unmarried and the British biological father is registered on the US birth certificate.  In other cases, the child will have to be registered as a British citizen or will have to apply for an entry clearance visa.

Bringing a surrogate child back from elsewhere in the world

In other countries (such as India, the Ukraine, Georgia, Russia and Thailand) there are a number of options.  Parents can obtain a British passport for their child if he or she is born British or successfully registered as a British citizen.  Parents can also apply for an entry clearance visa, granted on a discretionary basis where intended parents undertake to apply for a parental order and meet various other conditions.  A visa either takes the form of a stamp in a foreign passport, or a freestanding travel document if the child has no other passport.

It is important to plan carefully, to make the correct application as soon as possible after the birth, and to be prepared for a stay in the birth country (likely to be at least 4-5 months).  More detailed information about the immigration processes (including what documents you need to submit to apply) can be found in the Foreign and Commonwealth Office guide to Surrogacy Overseas.

Will my child born through surrogacy be British?

baby sleeping

British nationality gives a child the right to a British passport, and to enter and live permanently in the UK.  There are four ways by which a child born through surrogacy may become British:

By birth - If your child is born in the UK and has a British citizen legal parent (including a UK surrogate) he or she will be British by birth.

By descent - If your child is born outside the UK and has a British legal parent, he or she will usually be British 'by descent'.  This may apply, for example, if your surrogate is not married and the father registered on a foreign birth certificate is British.  However, the rules are complex and there are some odd exceptions.  Proving a surrogate's unmarried status can also be difficult in practice in some jurisdictions.

By registration - A child born through surrogacy who is not born British (for example a child born outside the UK where the surrogate is married) can usually be 'registered' as a British citizen.  This usually involves a discretionary decision made by the Home Secretary, but there is now an established policy that the power will be exercised if the child has a British biological parent.  The application for registration is made on Form MN1.

By parental order - A child becomes British on the grant of a parental order if one of the parents is British when the parental order is made.  In 2010 the law was updated to enable this (we are proud to say at our suggestion).  

Other nationalities

UK law allows a child to have other nationalities as well.  Children born in the USA are always US citizens, and children born through surrogacy in Thailand acquire Thai nationality as the surrogate is the legal mother under Thai law.  Most other surrogacy destination countries (including India, the Ukraine, Georgia and Russia) do not give nationality to children with foreign parents and this means that children are sometimes born 'stateless'.

If the intended parents are nationals of other countries, the child may also have citizenship of those countries, depending on the law there.