Many parents are crossing borders for surrogacy, sometimes due to personal connections internationally but more often to access surrogacy services not available at home.
Destination countries for surrogacy
The USA (surrogacy-friendly states), India and the Ukraine are established international surrogacy destinations for UK parents. All have legal frameworks which allow the commercial arrangement of surrogacy for foreign intended parents.
Across the rest of the world, there is considerable variety. Most European countries bar surrogacy altogether. Some countries have laws which allow surrogacy on a restricted basis (such as the UK which allows surrogacy, but is not generally a destination country for non-UK intended parents). Other countries have no law on surrogacy and some of these are emerging as new destinations.
Understanding the legal framework for international surrogacy
The law does not join up internationally which means you need to consider separately the law in every country with which you are connected. You should ask the following questions:
Is it legal for you to enter into a surrogacy arrangement? How does the law regulate arrangements, and have you thought about safety and ethical issues?
What nationality status will your child have at birth, and what passports can you apply for? How long will it take to get the documentation you need to travel home?
Will you be recognised as the legal parents of your child, both in the destination country and your home country (and, if relevant, any third country in which you are living)? What processes do you need to follow to secure your parentage and are there any deadlines?
UK parents going overseas for surrogacy
For UK parents, UK law will treat your surrogate (and if she is married her husband) as your child's legal parents, even if you are named as the parents on a foreign birth certificate or if you have a foreign court order confirming your parentage. To secure your parentage for UK law purposes, you will additionally need to apply for a parental order (or explore alternative solutions if a parental order is not available). There is now an established history of parental orders being granted in international surrogacy cases.
Immigration and nationality is usually dealt with separately. Most parents wish to bring their children home to the UK as quickly as possible after the birth, and in any event will need to enter the UK to deal with the parental order application process. Find out more about travelling home after the birth of a surrogate child abroad, and about British nationality.
Other international issues involving UK law
UK surrogacy law caters only for parents who have their permanent home in the UK; one or both must be 'domiciled' in the UK. This is not as simple as citizenship or residence and there can be issues if you are British but living abroad, or if you are living in the UK but not from the UK originally. There can also be complex issues if you are non-UK parents who want to work with a UK surrogate (perhaps a friend or family member).
In these cases it is important to confirm whether you will qualify for a parental order, and if not what alternative legal solutions may be available. Find out more about domicile and where UK law applies.
NGA document: UK parents going to the US
This printable NGA leaflet gives an overview of how UK law works for parents conceiving through surrogacy in the USA.
NGA document: Guidance for non-UK advisors working with UK parents
This printable NGA leaflet gives an overview of UK law for non-UK professionals working with UK intended parents, including US attorneys and overseas surrogacy agencies.
NGA document: Guidance for non-UK surrogates working with UK intended parents
This printable NGA leaflet gives an overview of UK law for non-UK surrogates who are working with UK intended parents. US attorneys and other non-UK professional advisers may find this useful to give to surrogates being matched with UK intended parents.
India is a popular surrogacy destination for UK parents. Our article, published in Bionews in June 2012, explains how things work in practice for UK parents going to India, including the lengthy immigration processes after the birth and the need to secure a parental order.
NGA publication: Made in the USA - Representing UK parents conceiving through surrogacy and ART in the USA
After speaking at a global surrogacy conference in 2011, Natalie was asked to write this practical guide to UK surrogacy law for US attorneys, which was published in Family Law Quarterly in the USA in Spring 2012. It is relied on widely by US attorneys as an authoritative how-to manual for working with UK Assisted Reproductive Technology clients.
NGA publication: International surrogacy law conference in Las Vegas
This piece for Family Law (published in February 2012) reports on the global assisted reproduction law conference in Las Vegas at which Natalie spoke in October 2011. It talks about the challenges of cross-border reproduction, and how things have evolved for UK parents engaging in international surrogacy and assisted reproduction.
NGA publication: Can you trust your surrogacy lawyer?
US surrogacy attorney Theresa Erickson was sent to prison for running a surrogacy scam which amounted to baby-selling. The case shocked many who had previously regarded the US as a 'safe' surrogacy destination. Our article about the story, published in Bionews in September 2011, explains what happened and why the case should not give surrogacy in the USA a bad name.
Our article, published in Bionews in May 2011, highlights the growing legal problems associated with international surrogacy arrangements and how the UK immigration authorities and family courts are responding.
NGA publication: Fertility tourism: what you need to know
More parents than ever before are crossing borders for fertility treatment involving egg donation and surrogacy. Natalie's article for charity Infertility Network UK's magazine (published winter 2010) summarises the legal issues for UK fertility patients considering treatment overseas.
Our article, published in respected UK journal International Family Law in November 2009, summarises UK policy and law on surrogacy, and looks at how the UK courts are dealing with situations where parents cross borders for surrogacy.
NGA publication: Crossing the line: the problems of foreign surrogacy
Our article, published in medical journal Reproductive Biomedicine in August 2009, explains the UK's approach to surrogacy, and how it is being tested in an increasingly globalised world.
This article, published in Family Law in March 2009, explains the case of Re X and Y (2008) (the very first UK case to ratify an overseas surrogacy arrangement) and its significance. It was co-written by Lucy Theis QC (now Mrs Justice Theis, the judge of the High Court responsible for deciding international surrogacy cases) with whom we represented the parents in the case.
NGA publication: International surrogacy: payments, public policy and media hype
This article, published in Family Law in May 2011, explains the case of Re L (2010) (the case in which the High Court said that the welfare of the child overrode policy against commercial surrogacy) and its significance. The case attracted significant media interest as a legal milestone, and we represented the parents.