International surrogacy: non-British couples living in the UK and British couples living abroad
The domicile requirement
One of the conditions for obtaining a parental order following surrogacy in the UK is that one or both of the intended parents is 'domiciled' in a part of the United Kingdom, Channel Islands or the Isle of Man. The court has no jurisdiction to make a parental order if you cannot satisfy the domicile criteria. Checking whether you meet the domicile criteria is an issue that can be important for non-British couples living in the UK and for British couples living abroad.
Domicile is an often misunderstood legal concept. It relates, not to where you are living or your citizenship status, but to a much wider assessment of your roots and affiliations. There is no simple checklist that you can apply to determine where you are domiciled; the court looks at all the facts and takes into account anything that it considers relevant. The basic law (from hundreds of years of cases) provides that you acquire a domicile of origin at birth from your parents, and this is only displaced (by a new domicile of choice) if you move to another country during your lifetime with a permanent intention to stay. Changing your domicile is not something that can be done lightly, and doesn't just relate to where you are living, but to how you conduct your life and your long-term intentions. Your position depends very much on the facts of your own situation, so if you are in any doubt as to your domicile status and whether you will qualify for a parental order, contact us for legal advice. We have worked on some of the leading cases to determine domicile questions in the context of surrogacy situations.
If you are living abroad, you might also need advice from a foreign lawyer as to how the law applies in your home country, and we can help you to arrange this.
What happens if neither of us is domiciled in the UK?
If neither intended parent is domiciled in a part of the UK, the court does not have the power to grant a parental order. This means that it will be difficult for you to secure your status as your surrogate-born child’s parents and to take your child out of the UK.
In the case of Re G (surrogacy: foreign domicile) 2007, a Turkish couple travelled to the UK and conceived a child with a British surrogate mother. The court couldn't grant a parental order because neither intended parent was domiciled in a part of the UK. It took nine months of litigation in the High Court to find an alternative solution using international adoption law. This entailed a full local authority assessment of the intended parents, and expert evidence confirming that the couple would be permitted to adopt in Turkey.
Although there might be alternative solutions, careful planning is key. In the Re G case, the court warned that, if any other intended parents followed this path, coming to the UK for surrogacy as foreign nationals, the court would impose on them (in addition to their own legal costs) the state’s costs for resolving the position.
How we can help
Contact us if you would like us to:
- Advise you on your domicile status and whether you will be able to apply for a parental order
- Advise you on how the law applies in relation to international surrogacy
- Represent you in an application for a parental (or alternative) order, including situations where you are not domiciled in a part of the UK
- Liaise with foreign lawyers.