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A practical guide to legal parenthood, immigration and bringing your child home.
Overseas surrogacy is increasingly common, but it remains one of the most legally complex areas of family law. Many intended parents understandably focus on the costs, medical and emotional aspects of the process. The legal position, however, is often far less straightforward.
Without careful planning, parents can encounter unexpected difficulties around legal parenthood, decision-making, and even returning to the United Kingdom with their child. This guide identifies the key legal issues which arise at an early stage so that those risks can be managed effectively.
Why early legal advice matters
Cross-border surrogacy engages multiple legal systems, each of which may take a different approach to parenthood and recognition of arrangements. It is important to understand that the enforceability of a surrogacy agreement abroad does not determine whether you will be recognised as your child’s legal parents in England and Wales. This means that an arrangement which appears secure overseas may not be recognised here. Intended parents can therefore find themselves caring for a child without yet being recognised in law as that child’s parents.
For this reason, legal advice should be taken at the earliest opportunity, ideally before any steps are taken or any agreement is entered into, and in any event before embryo transfer. Early advice can help intended parents identify the issues which need to be addressed before the arrangement progresses and may reduce the risk of difficulties arising after the child is born.
In practice, this requires careful consideration of the legal framework at each stage of the arrangement, including where treatment takes place, where the child is born, and how parenthood will be recognised in each jurisdiction.
Many of these issues will also be key to the nationality and immigration position of the child, and will determine how – and, crucially, how quickly – they can be brought back to the UK.
The legal risks of international surrogacy
Who is the legal parent at birth?
Under English family law, the woman who gives birth is treated as the child’s legal mother, regardless of genetics or any overseas agreement. If she is married or in a civil partnership, her spouse may also be treated as a legal parent. This can create a difference between the legal position and the practical reality of the arrangement.
Why is a parental order necessary?
A parental order is usually the route by which legal parenthood is transferred to the intended parents in England and Wales. Without one, intended parents may not have full legal status or the authority to make key decisions for the child. In international cases, this can be complicated further where documents or legal recognition overseas do not align with the position under English law.
Court scrutiny and consent
The court will consider the circumstances of the arrangement, including payments, consent, the surrogate’s position, and the evidence available. Where there are gaps in the information or documentation, the parental order process may become more difficult and the proceedings may take longer.
Payments, agencies and documentation
Payments and agency arrangements can attract scrutiny, particularly where the process takes place in a jurisdiction with different rules or where information is held by third parties. Difficulties may arise if there is limited information about the surrogate’s identity, circumstances or understanding of the arrangement. These issues are best identified before the arrangement progresses.
Why the surrogate’s marital status matters
The surrogate’s marital status is an important issue. If she is married at the relevant time, her spouse may need to be considered as part of the legal framework. This can affect both the parental order process and the child’s nationality and immigration position. This can have implications for how to bring the child back to the UK, as set out further below.
Surrogacy disputes in international arrangements
Although many international surrogacy arrangements proceed without dispute, difficulties can arise where expectations are not clearly understood, or the relationship between the intended parents, the surrogate and any agency breaks down. The risk is often greater where there are language barriers, limited direct contact, uncertainty around payments, or difficulty contacting the surrogate after birth.
Considering these issues at the outset is key to avoiding problems later down the line.
Immigration and nationality: bringing your child home
In addition to the question of legal parenthood and the family law dimensions of surrogacy, it is important to consider the immigration position at the outset. Intended parents will want to return to the UK with their child as soon as possible, but securing the documentation to facilitate the child’s entry can be far from straightforward. This is often the determining factor in how long intended parents will need to spend in the jurisdiction of birth. Taking early advice and putting in place a strategy is key to keeping this aspect of the process as smooth and quick as possible.
British nationality law will always consider the surrogate to be the child’s mother for citizenship purposes. If she is married, her husband will always be considered the child’s father. This often means that children born following surrogacy agreements are not automatically British at birth.
Where this is the case, they may need to be registered as British citizens before they can apply for a British passport, or they may need to obtain another type of immigration permission before being brought to the UK. Whether they can obtain a passport from the jurisdiction in which they are born will depend on the legal framework in the relevant country.
Where a surrogate is unmarried, the child may be born British where there is a biological link with the intended father. That will depend on the biological father’s own British citizenship, and how this was acquired.
Even where a child is born British, obtaining a first British passport from overseas can be a slow and protracted process.
Working out a strategy and preparing as much as possible in advance of the birth is key to minimising delays, and in getting the child back to the UK as quickly as possible.
A pre-conception checklist for intended parents
The court has emphasised the importance of clarity on any issues before any arrangement proceeds.
Before entering into any arrangement, intended parents should carefully consider the following:
- Is the proposed arrangement lawful in the relevant jurisdiction, and are there any restrictions on intended parents (for example, same-sex couples)?
- Is there a genetic link between the child and at least one intended parent?
- Who will be recognised as the child’s legal parents at birth in the country in which the arrangement takes place?
- What evidence will be required to establish parentage in the UK?
- Is the surrogate married, and what are the implications?
- Where will the embryo transfer take place, where will the surrogate live during pregnancy, and where will the child be born?
- Can the surrogate and, if relevant, her spouse be identified, contacted and available to provide consent after the birth and if so, how will the consent be obtained and recorded?
- What information, preparation or support has the surrogate received, and is there evidence that she understands the nature of the arrangement?
- Will the child be British automatically?
- What documentation will be required for travel?
Addressing these issues early can avoid significant difficulty later.
The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.
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