International surrogacy law

baby in a knitted stripped hatMany parents cross borders for surrogacy, sometimes due to personal connections but more often to access professional surrogacy services.  The most established international surrogacy destinations are the USA (California and Illinois being among the most well-known states for surrogacy, but with many other states also supporting surrogacy), the Ukraine and Georgia.  Canada is a possible option, although it only allows unpaid surrogacy and restricts brokering by third parties.  As of November 2015, India suspended surrogacy services for foreign couples, although it was previously a very popular international destination. Other new destinations emerge frequently, often in an absence of a clear legal framework on surrogacy, and in these countries there is a track record of surrogacy being shut down shortly after it becomes popular (Thailand, Nepal, Mexico and Cambodia being significant examples).

The law does not join up internationally which makes it important to understand the law in the destination country, at home and in any other country with which you are connected. 

What to think about before international surrogacy

Making international surrogacy work successfully is all about planning.  Before you go ahead, make sure you have thought about:

How things work in the destination country - Is surrogacy legal? What regulation is there (if any) of the services you plan to use? Are the services well-established?  Are they safe and ethically-run? Have you budgeted accurately?

Crossing borders - What nationality status will your child have? How long will it take to get the documentation you need to travel home?  

Parentage - Will you be recognised as the legal parents of your child everywhere you need to be?  What processes do you need to follow to secure your parentage? 

Getting home to the UK with your baby

If you are British or bringing your baby back to the UK, you will need to understand how the law on British nationality applies and what you need to do in practice to bring your child home after the birth.  In practice, the rules on British nationality can be complex and specific to your personal situation, and there are various different routes home (depending on your circumstances and the destination you are travelling from). Find out more about British nationality and UK immigration law as it works in the main international surrogacy destinations.

Legal parenthood after international surrogacy

UK law treats your surrogate and her spouse as your child's legal parents, even if you are the legal parents in the country where your child is born. Parents who want to secure their status in the UK need to apply for a parental order after the birth. The application will be heard before a specialist judge in the High Court, who will scrutinise:

child in ballet clothesConsent from the foreign surrogate
The UK court is careful to ensure that a foreign surrogate understands any documents she is asked to sign, and that the formalities have been properly complied with.  In Re D and L (2012), an Indian surrogate mother could not be found to give consent and the High Court ultimately waived the requirement because every effort had been made, but this remains the only reported parental order ever granted without the surrogate's consent.

Payments
Most international surrogacy cases involve payments of more than expenses to the surrogate and any agency.  Since UK law expects parents to pay no more than reasonable expenses, the court must agree to 'authorise' any payments before it can make a parental order.  The High Court's first three international surrogacy cases (Re X and Y (foreign surrogacy) 2008Re S (2009) and Re L (2010)) still set the framework the court applies. The court has said it would not refuse an order which was in the child's best interests unless the case was one of the 'clearest abuse of public policy'.  However the court makes each decision on a case-by-case basis.

Domicile issues
One or both of the applicants for a parental order must be 'domiciled' in a part of the United Kingdom, Channel Islands or Isle of Man.  Domicile relates, not to where you are living or your citizenship status, but to a much wider assessment of where your permanent home is.

If you are British and living abroad, you will need to confirm your continuing links with the UK and intention to return.  In the case of CC v DD (2014) a couple living in France was given a parental order after being satisfied that the British mother had retained her English domicile of origin.  

If you are not from the UK originally, you will need to show that you are permanently settled in the UK. In the case of AB v SA (2012) the court was satisfied that an American-Polish same-sex couple who had recently settled in the UK had acquired an English domicile of choice. 

Non-UK parents coming to the UK for surrogacy

The UK is not generally a destination country for non-UK parents. Surrogacy in the UK is restricted (which can make finding a surrogate difficult) and the legal issues are complex.  However, some non-UK parents do conceive with surrogates in the UK, most commonly where a friend or family member based in the UK has acted a surrogate.

You will not be recognised as legal parents under UK law (find out more about parenthood after surrogacy) and the UK court cannot make a parental order if neither of you is domiciled in the UK.  Domicile relates to where your permanent home is so acquiring a temporary UK address will not be sufficient.  Depending on the circumstances, you might need the permission of the UK court to take your child out of the country.  In Re G (surrogacy: foreign domicile) 2007, a Turkish couple conceived a child with a British surrogate and was ultimately permitted to take the child to Turkey for adoption there.