International surrogacy: British couples going abroad for surrogacy
More British parents are looking abroad for surrogacy to places like the USA, India and the Ukraine, among others. The availability of surrogate mothers (and egg donors) is often the major practical attraction. The surrogacy arrangement might also be enforceable, with the destination country allowing you to become legal parents automatically, either through a foreign court process (such as a Californian pre-birth order) or simply by allowing you to be named on the birth certificate by custom or practice (as in India).
However, UK law will not recognise the position in your destination country automatically which means you will need to deal with the UK legal issues as well, and this follows after the birth. Doing so is now an increasingly manageable and well trodden path, but you need to do your homework.
Foreign surrogacy and legal parenthood
English law on parenthood applies for UK purposes, no matter what the foreign law says. This issue was tested in the case of Re X and Y (foreign surrogacy) 2008, in which the High Court decided that English law took precedence over any foreign law on parentage so that foreign birth certificates and court orders were not recognised.
As in domestic surrogacy cases, the solution is for you to apply to the court in the UK for a parental order after your child is born. In international surrogacy cases, the court will usually expect that you have paid more than 'reasonable expenses' and so the High Court will need to 'authorise' your payments. To do so, it will scrutinise your case carefully and ask for evidence that you have dealt with things responsibly and honestly. It will also need clear evidence of your surrogate's consent. There is a growing track record of parental orders being granted, and no applications have been refused.
The case of Re X and Y (foreign surrogacy) 2008 was the very first international surrogacy case (and our team acted for the parents). It involved a British 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 public policy against commercial surrogacy) because:
- the intended parents had behaved responsibly,
- the surrogate had not been exploited and
- the welfare of the children demanded it (the children were otherwise 'stateless and parentless').
We have come a long way since that very first case in 2008. The case of Re L (2010) marked the next landmark (and again we acted for the parents). The case involved an Illinois (USA) surrogacy arrangement and the court decided that the child's welfare was the court's 'paramount consideration'. The reason this was important was that the court said that a parental order would never be refused unless the case was the 'clearest abuse of public policy' (as yet, there has never been such a case).
Many other cases have since been heard by the court, including Indian, South African, Ukrainian and US surrogacy cases. We have acted for the parents in many of these. In 2013, we acted for the parents in the case of J v G (2013). This case marked the highest amount paid for surrogacy ever authorised by the court - $56,750 plus expenses, paid to a Californian surrogate. In 2012, we acted for the parents in the case of Re D and L (2012), the first parental order even granted without the surrogate's consent (because the Indian surrogate had disappeared and could not be found). In 2013, we acted for the parents in the very first Russian surrogacy case.
Entry clearance and citizenship
The first question asked by most British parents considering foreign surrogacy is how to bring their child home to the UK. Applying for entry clearance or a British passport involves the Home Office/ immigration authorities, and is completely separate from your application for a parental order, which involves the family court.
If the legal father of your child is British (i.e. in cases where the surrogate is unmarried), your child will normally be born British. However, the rules are complex and there are some odd exceptions. Evidencing a surrogate's unmarried status can also be difficult in practice in some jurisdictions.
If your child is British at birth, this resolves most of the immigration difficulties, although you should still apply for a British passport before your child can be brought into the UK (in practice, you may be able to travel with a US passport alone if your child is born in the USA, but this breaches immigration control and it is important to understand the risks).
If neither of you is a legal parent (typically where your foreign surrogate is married), your child will not be born British. Depending on the law in the country where your child is born, your child might also have no citizenship status there either, and if so he or she will be born ‘stateless’ (as was the case in Re X and Y). You will then need to apply for a discretionary grant of citizenship and/or entry clearance to bring your child home to the UK. The quickest and easiest route home will depend in practice on where you are coming from, but this is an increasingly well trodden path. The Foreign and Commonwealth Office have recently issued some new guidance.
How we can help
We have the UK's leading experience in international surrogacy law by a very long distance. You can find out more about our Surrogacy Law Services or contact us if you would like us to:
- Advise you on how English law applies if you are planning an international surrogacy arrangement
- Represent you in your parental order application (or give you support if you are representing yourselves)
- Help you to resolve entry clearance and citizenship issues
- Liaise with foreign lawyers.
If you are considering a surrogacy arrangement in the USA, read our free downloadable leaflet.
