In England and Wales surrogacy is not illegal but it is an offence to arrange surrogacy commercially. As a result many UK couples and single people who are planning a child through surrogacy are looking abroad to countries where commercial surrogacy is legal. This area of law is already complex and it gets even more complicated when international family law and immigration law of two or more different countries come together. Another problem is that the law in the other country can change quickly and although surrogacy may not be illegal there, it may suddenly become illegal for foreigners or anyone other than heterosexual married couples. Some intended parents have found themselves with frozen fertilized embryos in a country where they cannot now legally use them.
The law of the other country involved often makes very different provisions to English law. In some places (apparently, for instance, California, India and Ukraine) the intended parents are also the legal parents by operation of law arising from the surrogacy agreement. This may be recognised in some countries, but it seems so far English law does not recognise this. This can cause severe problems, especially when the surrogate is married or in a civil partnership. English couples should therefore always choose an unmarried surrogate.
Some countries have a post-birth fast-track recognition or adoption process, similar to parental orders in England. This can potentially cause other problems for the intended parents, who may unwittingly be committing offences to curb informal international adoption.
Please also see the pages about
Every case is different and the law in some countries changes rapidly. On this page we highlight only some important aspects of international surrogacy. Below you will find free information about:
To bring your child back to the UK, you generally must
- have a valid travel document (passport) for the child,
- have entry clearance (a visa) for the child unless the child has a British or an EU or EEA passport (or a passport of a country whose nationals can travel to the UK without a visa) and
- have the right to bring the child to the UK.
When looking at immigration issues, it is important first of all to have a clear idea about who the legal parents of the child are under both English law and the law of the other country. Please see the separate page about this. If the surrogate is single and the sperm of (one of) the indented father(s) was used, it is usually possible to apply for a British passport on the basis of the paternity of the British biological father (or for a visa if the biological father is not British). However, if the surrogate is married or in a same-sex civil partnership or donor sperm was used, this is probably not so straightforward. Either way, if you have to apply for a British passport, you can expect to be stuck with the child in the foreign country for a considerable time, usually around 3 months or longer.
A British couple went to the Ukraine to arrange the surrogacy of twins with a married surrogate. Under Ukrainian law apparently the intended parents were the legal parents of the children from birth and Ukrainian law therefore regarded them as British and did not issue passports for them. Under English law, the surrogate and her husband were the legal parents of the child and English law therefore regarded the twins as Ukrainian and not British and the British authorities did not issue a passport for the children either. The twins were therefore legally stateless and parentless. The situation could only be regulated after costly and lengthy court proceedings.
Although this has not been explicitly stated as such by the English courts so far, English law should only apply to the question of parentage if this is the personal law of the child (or the parents). Therefore if the biological father is not domiciled in England, the situation may be different. This has not yet been fully tested in the courts. The immigration situation is rather easier if the child is entitled to the nationality of the country of birth, such as in the USA and Canada. This then provides you with a travel document rather quickly and it seems easy to travel back to the UK with that foreign passport for the child together with the foreign birth certificate showing the intended parents as the parents. It also seems to help to have prove, such as a letter from your solicitor, that you are applying or have already applied for a parental order.
In every case it is best to plan ahead, contact the relevant diplomatic mission in advance and prepare whatever is necessary long before the birth in order to try to avoid any unnecessary delay after the birth.
Alternative Family Law does not deal with immigration matters and we recommend you contact specialist immigration lawyers instead.
Payments to the Surrogate
To regularise parentage, the intended parents in almost all cases must apply for a parental order (or for adoption) in England or Wales. Neither of this is, however, possible if a payment has been made to the surrogate as the legal mother specifically for her to agree to the parental order or adoption. For a parental order the payment for reasonable expenses is allowed and other payments can be authorised by the court. It is therefore vital to ensure that you do not sign a contract that says that the surrogate gets paid for agreeing to hand over the child or to agree to the parental order or adoption. While we cannot get involved with the arrangement and negotiation of a surrogacy agreement, we can look at a draft agreement and advise you on whether any clauses may cause difficulties in an application for a parental order.
In all cases the intended parents must of course obtain detailed advice from an expert lawyer in the other country (and in any other countries of which they are a national or where they may have their domicile).
The intended parents should also understand the ways the system is going to operate in the other country and ensure that there are no language barriers which could cause misunderstandings. In our experience it is in most cases far easier (and therefore cheaper) to deal with a parental order when the surrogate, the agency and/or clinic and everyone else involved speak fluent English and are readily contactable by telephone and email and it is therefore not necessary to translate court documents etc.
You must ensure that the surrogate and the newborn are covered by health insurance. It seems that this is now much easier and cheaper in the US since the Affordable Care Act came into force.
In all cases of international surrogacy, it is vital for the intended parents to obtain the advice from an expert lawyer before they sign any agreement, pay any money or start any medical fertility treatment.
For advice on your specific circumstances please contact a solicitor
22 February 2016 by Andrea Woelke