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 ready supply of surrogate mothers (and egg donors) is often the major practical attraction. The surrogacy arrangement might also be enforceable, with the destination country allowing the intended parents to become legal parents 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).
However, international surrogacy arrangements are complex, since UK law will not recognise the position in your destination country. You will need to consider the legal issues in the UK as well.
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 in relation to an international surrogacy arrangement - foreign birth certificates and court orders are not recognised.
If you are British and going abroad for surrogacy, one or both of you will have no status as a parent for UK legal purposes when your child is born, and neither of you will have 'parental responsibility'. This can create significant immigration issues, as well as meaning that your child will not be recognised as your child in the UK. This has many implications, from your ability to make decisions about your child's care in the UK, to the risk of social services' involvement, to what happens if you die or get divorced at a later stage. As you will only have a limited window of opportunity during which to secure your legal parentage in the UK, it is important not to leave things unresolved.
As in domestic surrogacy cases, the solution is for you to apply to the court in the UK for a parental order. In international surrogacy cases, the court takes particular care, partly to ensure the clear consent of the surrogate mother who is based abroad, but also to regulate how payments for surrogacy are dealt with. Under UK law, payments for surrogacy are discouraged, so the High Court needs to exercise a special discretion to 'authorise' payments of more than actual expenses to a foreign surrogate, and in doing so it wants to check that things have been managed responsibly and the surrogate has not been exploited. 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 for the very first time (and we acted successfully 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').
The case of Re L (2010) marked the next landmark and a significant step forward (and again we acted successfully for the parents). The case involved an Illinois (USA) surrogacy arrangement and, as the first application heard under the new Human Fertilisation and Embryology Act 2008, it made clear that the child's welfare was now the court's 'paramount consideration' and that a parental order would only be refused if there was the 'clearest abuse of public policy' (as yet, there has never been such a case).
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.
This means that any application for a parental order in an international surrogacy case will be involved, and you will need to prepare carefully.
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 courts.
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 carries some risk and breaches immigration control).
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.
How we can help
We have leading experience in international surrogacy law, having acted in the cases which made the law in this area as well as many others. We deal with international surrogacy arrangements every day and have unique current practical grounding. 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.