International surrogacy: British couples going abroad for surrogacy

baby looking over edge More British parents are looking abroad for surrogacy with typical destinations including certain US states, the Ukraine and India. One of the attractions is that some foreign systems of law allow the intended parents to acquire parenthood status after surrogacy automatically, either through a foreign court process (such as a Californian pre-birth order) or simply by allowing them to be named on the birth certificate by custom or practice (as in India).

The surrogacy arrangement might also be legally enforceable in the foreign jurisdiction, with the surrogate parents having no parental responsibilities when the child is born. The ready supply of surrogate mothers (and egg donors) given the different regulatory environment is also often a practical attraction.

However, international surrogacy arrangements can be immensely complex, and it is important to consider the English legal issues (if these apply to your family) as well as the law in the destination country.

Foreign surrogacy and legal parenthood

If the intended parents are domiciled in a part of the UK, English law on parenthood applies, notwithstanding the international context. This issue was tested in the case of Re X and Y (foreign surrogacy) 2008, in which the High Court decided that English law on parenthood took precedence over any foreign law in relation to an international surrogacy arrangement.

If you are British intended parents going abroad for surrogacy, one or both of you might have no status as a parent for English legal purposes, even if you are named as the parents on a foreign birth certificate or have a foreign court order confirming your status as parents. You then have no authority to act as a parent or to make decisions about your child’s care in the UK, and it might even be a criminal offence for you to care for your child in the UK if you do not involve social services.

As in domestic surrogacy cases, the solution is for you to apply to the court in the UK for a parental order. However, difficulties can arise if you have paid your surrogate mother more than reasonable expenses (which might be the norm in the country of your surrogacy arrangement). However, there is a growing track record of parental orders being granted, on a case-by-case basis, in these circumstances.

The case of Re X and Y (foreign surrogacy) 2008 explored this issue, and was the first English legal case to deal with an international surrogacy arrangement involving British intended parents. The case involved a couple who conceived twins with a Ukrainian surrogate mother who was paid £23,000. The British High Court ultimately agreed to authorise the payments (notwithstanding its public policy mandate to prohibit commercial surrogacy), but it took care to set out the factors that it had taken into consideration in reaching this decision. These included:

The overall level of the payments
The bona fides of the intended parents
The lack of exploitation of the surrogate mother
The welfare of the children.

The case of Re L (2010) involved an Illinois (USA) surrogacy arrangement entered into on a commercial basis. The first case to be heard after changes to surrogacy law introduced by the Human Fertilisation and Embryology Act 2008, it made clear that the court must now treat the child's welfare as its paramount consideration. It also stressed the importance of intended parents seeking legal and immigration advice before embarking on an arrangement.

Both these cases have established that every surrogacy case involving a commercial payment is referred to the High Court and looked at very carefully and judged on its own facts, to ensure that the public policy issues (designed to prevent exploitation and baby buying) are fully considered.

Indian surrogacy

This means that any application for a parental order in an international surrogacy case is likely to be a complex one. Contact us for more information or further help, wherever you are in the process. We provide a range of services from full representation to support behind the scenes.

Entry clearance and citizenship

The first question asked by most British parents considering foreign surrogacy is whether they will be able to bring their child home to the UK.

If neither of you is a legal parent (typically where your foreign surrogate is married), your lack of parental status can create significant difficulties. If English law does not treat either of you as your child’s legal parent, your child is not normally British at birth. Depending on the law in the country where your child is born, your child might also have no citizenship status in his or her country of birth, and if so he or she will be born ‘stateless’ (as was the case in Re X and Y).

If your child does not have British citizenship status, he or she has no automatic right to enter and live in the UK; this is the case even if he or she is entitled to a US passport at birth. You must apply for a discretionary grant of citizenship and/or entry clearance to bring your child home. The process of applying for entry clearance and/or citizenship involves the Home Office and immigration authorities, and is completely separate from your application for a parental order, which involves the family courts. There are complex rules and policy guidance on the circumstances in which discretionary clearance is given, and the practical application of these rules varies around the world.

If the intended or biological father is the legal father of your child (for example, if your surrogate is unmarried) and he is a British citizen, your child is normally entitled to British citizenship at birth. However, it is important in any foreign surrogacy situation to seek specialist advice, because British nationality law is immensely complex and a great deal depends on the detailed facts of your situation.

If your child is British at birth, this resolves most of the difficulties with entry clearance, although you must still apply for a British passport before your child can be brought into the UK.

How we can help

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