Surrogacy is an emotive and complex matter, and international surrogacy can present additional unique legal, ethical and risk-management challenges. However, restrictions to commercial surrogacy arrangements in England and Wales combined with lower medical expenses and a greater availability of women abroad who are willing to act as surrogates compared to the UK, means that using a surrogate overseas is appealing for those who want to make their dream of being a family come true.
If you’re considering international surrogacy, just as you would with the domestic surrogacy process, you should do your research before making the decision to commit to using a surrogate in a different country. The UK government’s Surrogacy Overseas guide and it’s recent guidelines on surrogacy in England and Wales are a good starting point. In addition, seeking legal advice is crucial, as it’s essential that you completely understand the risks involved in foreign surrogacy arrangements, the process, legal implications and what to expect before signing a contract for an international surrogacy arrangement.
Choosing to use an international surrogate should be a decision made with the head not the heart. Preparation and early legal advice is key to make the process as easy as possible and to avoid unnecessary distress.
The legalities of an international surrogacy arrangement
There a host of legal questions to get your head around when considering international surrogacy. Are surrogacy arrangements enforceable? Am I the legal parent? How do I become the legal parent? Which country’s law applies? Is my child a British citizen?
Using a foreign surrogate compared to using a British surrogate can actually put you in a stronger position in terms of your legal rights. While surrogacy arrangements are unenforceable in England and Wales – even if the child is genetically connected one of the intended parents – in an increasing number of countries, such as Georgia and Ukraine, a surrogacy contract is legally enforceable. In recent years many countries – including Thailand and India – have clamped down on commercial surrogacy, though, following a series of high-profile cases. So, it’s vital when considering international surrogacy to ensure that the laws of the land permit it.
However, the question of parenthood is much more complex. Although in countries where surrogacy arrangements are legal, a birth certificate will often name you as the legal parents in that country, under English law you will still not be considered the legal parent until a Parental Order or an Adoption Order is granted in your favour. Even if the surrogate mother has no genetic connection to the child, she is considered to be the legal mother according to English law. Furthermore, if the surrogate is married, her husband (or civil partner) is deemed the legal father of the child under English law, unless he/she didn’t agree to the surrogacy arrangement. If the surrogate mother is unmarried, the intended father can be treated as the legal father, as long as he is the genetic father or if he is legally named as the father when the child is born.
In addition, making commercial payments – which is deemed as remunerating the surrogate with an amount over and above reasonably incurred expenses – is prohibited in England and Wales, but an international surrogacy contract almost always requires payments to the surrogate and sometimes third parties. Therefore, to obtain a Parental Order you will have to provide details regarding the international surrogacy agreement in order for the High Court to retrospectively authorise the payments if they consider it appropriate, under the HFEA 2008 act, which governs Parental Orders.
Although there has not yet been a reported case of the courts failing to grant authorisation of these payments, there is an increasing concern from judges about the extent to which women in some countries risk exploitation. Therefore, you should expect the court to scrutinise the details very carefully in terms of what payments have been made, and how those payments compare to the local cost of living etc.
Until you are granted a Parental Order, you are not the considered to be the legal parents under English law. This means you will not have parental responsibility, which gives you the authority to make all the crucial decisions about a child’s upbringing, until a Parental Order is granted. Therefore, you could encounter legal problems, should crucial decisions need to be made, such as authorising medical treatment, before obtaining a Parental Order.
However, once granted the Parental Order goes one step further than adoption as the General Register Office will, on receipt of the court order, issue a new birth certificate for your child naming you as the parents!
Obtaining British citizenship for your child
In some international surrogacy cases, it is possible for the child to be born British, in which case it is possible to apply for a British passport at the nearest British embassy. It should be noted that the application can be complex and requires extensive documentation, which will need to be sent back to the UK. Understandably, these applications often attract close scrutiny and, as such, this can be a lengthy process, potentially taking several months.
However, in most cases a child born to a foreign surrogate is not automatically considered a UK citizen. Therefore, they will usually a need visa to enter the UK, and problems with obtaining immigration clearance – especially before parenthood is transferred – are not uncommon. There are a few options available, depending on the country in which the international surrogacy arrangement is held.
- An application to register the child as British can be made from abroad, but this can be a lengthy process and will require substantial documentation, as well as lengthy detail and evidence of the surrogacy arrangement.
- Alternatively, if the application to register the child is to be made from within the UK, careful consideration of how to bring the child to the UK in the interim will need to be undertaken.
Once the child has been successfully registered, they will be issued with a Certificate of Registration, which can be used to apply for a British passport for the child.
For parents who are not British but resident within the UK, the legal position is much more complicated, and therefore seeking legal advice at the earliest opportunity is strongly advised.
Unexpected complications regarding international surrogacy
The complexity and lengthy process of obtaining British citizenship and/or securing immigration clearance, combined with local immigration rules – which may limit the amount of time the intended parents can remain in the country of the child’s birth – may result in additional complications.
It can also become a race against time to procure the right to bring the child back to the UK before the intended parents’ visas expire. In the worst-case scenario, the intended parents may have to leave the country and child, and therefore arrange suitable care for the child until they can return. In addition, this can also have an impact upon the intended parents’ ability to apply for a transfer of legal parenthood. The criteria for a Parental Order states that the child lives with the applicants on both the date of the application and the date of the final order.
It is vital for anyone considering an international surrogacy agreement to consider the laws both in their home country and in the country in which the arrangement will take place. Seeking expert advice from family lawyers and immigration specialists before proceeding with a foreign surrogacy arrangement is crucial, to ensure that both country’s laws are compatible and will allow the for the prompt and straightforward transfer of legal parenthood.
For more information and details of a recommended lawyer, with experience in dealing with the legal aspects of surrogacy, contact our team on 01244 470339 or email us at firstname.lastname@example.org.