International Surrogacy

In England and Wales surrogacy is not illegal but it is an offence to arrange surrogacy commercially. As a result many UK couples who are planning a child through surrogacy are looking abroad to countries where commercial surrogacy is legal. This then entails complicated issues of international family law and immigration law in an area of law that is already complex and does not reflect clearly the reality of the situation in many cases.

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, which is legally enforceable in some countries, but not under English law. 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.

Other countries have a post-birth fast-track 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.

The area is extremely complex and all intended parents must seek advice from a specialist family lawyer with expertise in international family law before they start the process.

Every case is different and on this page we highlight only some important aspects of international surrogacy. Below you will find free information about:

Immigration – bringing the child back to the UK
Payments to the surrogate and how they can cause problems later on
Practical aspects

Please also see the pages about

Immigration

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 and
have the right to bring the child to the UK.

When looking at immigration issues, it is important 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 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, this is probably not possible and you may be stuck with the child in the foreign country for a considerable time.

Example:

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. It may in any event then be possible to bring the child to England on a foreign passport.

In every case it is best to plan ahead, contact the relevant diplomatic mission in advance and prepare long before the birth in order to try to avoid any delay after the birth, which could be lengthy and costly.

The Home Office is currently reviewing its policy in this area and this may therefore change in the near future.

Alternative Family Law does not deal with immigration matters and we recommend you contact Barry O'Leary at Wesley Gryk Solicitors (020 74016887; barry@gryklaw.com).

In this context it is important to note that if the child is not legally the child of the intended parents under English law, there may also be complications as the authorities may ask to see the legal parents’ permission to take the child abroad even if the child has a valid passport, e.g. a US passport.

Payments to the Surrogate

To regularise parentage, the intended parents will need to apply for a parental order (or for adoption) in England. Neither of this is, however, possible if a payment has been made to the surrogate as the legal mother for her agreement to the application. For a parental order the payment for reasonable expenses is allowed and other payments can be authorised by the court. It is therefore vital for the intended parents to obtain specialist legal advice before they agree to the surrogacy to ensure that the particular way they are planning to do it will not prevent them from obtaining a parental order later on. 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. Please contact us as early as possible.

Practical Aspects

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 particular in the US where health care is particularly expensive, the intended parents must ensure that both the surrogate and the child once born are covered by health insurance. In countries where the child is legally the child of the intended parents, the surrogate’s health insurance would not readily cover the child. In particular if the child is born early and needs intensive care, this can be extremely costly dwarfing any costs incurred in connection with the surrogacy. In one case which we dealt with twins were born early and the treatment in the US for the first week post birth came to US$160,000 with an expectation that the children would be in hospital for 8-10 weeks. Fortunately these parents had health cover.

In all cases of international surrogacy, it is vital for the intended parents to obtain the advice from an expert solicitor before they sign any agreement, pay any money or start any medical fertility treatment.

For advice on your specific circumstances contact Alternative Family Law: ring or email us.

October 2010

Alternative Family Law

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