National Surrogacy Week: International Surrogacy - Where are we?

Whilst it is possible for there to be international recognition of an overseas adoption, there is no such route for recognition of legal parentage acquired overseas in a surrogacy arrangement. Where a surrogacy arrangement is entered into overseas, and even where the intended parents are recognised as parents in that country, a Parental Order is essential for recognition in this country as the child's parents. Various criteria must be met, including that at the time of the application and the making of the order either or both of the intended parents must be 'domiciled' in the UK. 'Domicile' can be a complicated concept and relates to where an individual's permanent home is.

At present, the requirement that at least one of the intended parents must be 'domiciled' in the UK may create an obstacle for many international intended parents who may be habitually resident but not domiciled in the UK. For example, a French couple who were habitually resident but not domiciled in the UK would be unable to obtain a Parental Order here, and so would not be treated in law as the child's parents. Further, they would be unable to exercise parental responsibility, for example to consent to medical treatment for the child. In those circumstances, an international adoption may need to be considered (which may present further complications) or an application for a Child Arrangements Order to confer parental responsibility (although this would not address legal parentage).

The Law Commission has completed a consultation in relation to surrogacy reform and its final recommendations are expected in Autumn 2022. One of its initial proposals was that the law in England and Wales should recognise the status of legal parenthood acquired by intended parents overseas automatically (without the need to apply for a Parental Order). However, this would be on a 'country by country basis' and so it would need to be established that the law and practices of the overseas country provided the necessary protections for the welfare of the child and against exploitation of the surrogate. Therefore, such recognition is likely to take some time. The Commission also provisionally proposed an alternative eligibility requirement of habitual residence (a concept based on a person living in a country and having their "centre of interests" there) for international couples to obtain a Parental Order here. It is hoped if implemented, that this proposal will result in the route to legal parenthood in the UK for many international intended parents being far smoother.

Where an international surrogacy arrangement is entered into, attention must also be given to any UK immigration requirements

The immigration aspects of an international surrogacy are often overlooked as intended parents assume their child born by way of surrogacy will automatically be entitled to their nationality. However, this is not always the case and often the immigration processes required to bring the child back to the UK can cause an unexpected delay in returning home, and consequently considerable anxiety.

The starting point is to consider what nationality the child will be upon birth and therefore, what passport will the child be entitled to hold in order to travel to the UK with the intended parents. It is important to note that there may be some circumstances in which the child is not automatically entitled to any passport and is, effectively, born stateless.

Similar to UK family law, UK nationality law dictates that the person who gave birth to the child is the mother for nationality purposes. As such, a British intended mother will never automatically pass her British citizenship to a child born by way of surrogacy.

Therefore, the starting point is to consider who the father may be for citizenship purposes. If the surrogate is married, her spouse will be the child's father/second parent under British nationality law, preventing a British intended father from passing on his British nationality automatically to the child.

If the surrogate is not married, then the father of the child will be the intended father, provided the intended father has a genetic connection to the child. In this circumstance, a British intended father can pass British nationality to the child and the child will be British at birth and, subsequently, able to apply for a British passport. However, for British nationality to pass in this way, the British intended father must have British nationality "otherwise than by descent". This means that the British intended father was born or adopted in the UK or became a British citizen through naturalisation.

If the intended father is not the child's genetic father, or if there is no intended father, and the surrogate is not married, then for UK nationality purposes, the child will have no legal father, and no automatic entitlement to British nationality at birth.

If the child does not acquire British citizenship automatically through the intended father, and has no entitlement to any other passport, then it will be necessary for the child to be granted British citizenship. To do so, the intended parents must make an application to the Home Office for the child to be registered as British. Registration applications can take up to six months to be processed by the Home Office. Once registration as a British citizen has been granted, the intended parents may then apply from outside of the UK for the child's first British passport.

As obtaining a passport and any necessary UK visa can take several months, intended parents should obtain advice in relation to the child's UK immigration requirements pre-birth. This will help with understanding the length of time post-birth they may need to remain in the country where the surrogacy took place. As part of this planning, they should take steps to ensure their own immigration status in that country will be lawful while the baby's passport is being issued and, if the baby is not being issued with a British passport, any subsequent UK visa is processed. Where these documents may take several months, on a practical level, intended parents may wish to consider where they will stay and what their support network as new parents will be while outside of the UK in order to make suitable arrangements.