Stowe family lawyer Tamara Adams looks at the complex topic of international surrogacy and what British intended parents need to know.
Frequent misunderstandings of UK Law and International Law on Surrogacy
Surrogacy is a word that covers a variety of situations where, a woman carries and bears a child on behalf of someone else.
The woman who carries and bears the child is the “surrogate mother”. However, she can do this without being genetically related to the child, for example by using the egg and sperm of the intended parents.
Alternatively, the sperm or egg necessary to create the embryo can come from a donor and the embryo implanted into the surrogate. In such circumstances any resulting child may have no genetic connection with the surrogate mother or her husband/wife, (if she has one).
Global surrogacy laws or treaties
There are no global surrogacy laws or treaties, and this can create confusion for those entering into a surrogacy agreement.
In the UK the surrogate is always considered a legal parent, even in circumstances where there is no genetic link. This is not the case in all countries, for example in California the intended parents can be recognised as the legal parents at birth if all criteria to achieve this are met.
Consequently, it can be attractive to enter into a surrogacy arrangement in a country that recognises the intended parents as your child’s parents from birth. However, that is not the recognised position in the UK; the surrogate would still be seen as the parent and so if you are British or live in the UK you will also need to resolve legal parenthood under UK law.
Do intended parents need a Parental Order?
Yes. It is still vital for intended parents to seek a parental order following the birth of the child.
In the UK, the surrogate obtains parental responsibility and legal parent status automatically when the child is born.
If they are married, their partner will also, automatically, be named as the other parent with parental responsibility. To change this, a parental order must be applied for and to obtain such an order it must comply with Section 54 of the Human and Fertilisation and Embryology Act 2008. The criteria is as follows:
- There must be a genetic link to the child
- The application can be made by an individual or couple who are married, in a civil partnership or enduring relationship
- Six weeks must have passed since the child’s birth
- Application must be made within 6 months of birth
- Surrogate must consent to the order being made
- The Applicant(s) must be domiciled in the UK
- Child must be living with the applicant(s) at the time of the application
- The court must be satisfied that no money or other benefit (other than for expenses reasonably incurred) has been given or received by either of the applicants for or in consideration of the surrogacy arrangement.
As a result, intended parents are frequently seeking surrogacy assistance abroad without obtaining legal advice beforehand and then, find themselves in a difficult position when seeking to return to the UK with the child.
What happens when a Parental Order is not made?
In the case of X v Z (Parental Order Adult)  EWFC 26, the Court undertook a detailed analysis of the serious and lifelong legal consequences for when an Order is not made.
The intended parents were not aware they required a parental order in the UK, as they believed their position mirrored the legal position in the US, until their surrogate made them aware many years after the child had been born, only by chance, because the surrogate had been informed elsewhere due to another child she had carried following another agreement being in the same position with a UK couple. This case has since become pivotal caselaw to highlight the importance of obtaining a parental order in the UK.
Returning to the UK after surrogacy
The UK Court and immigration authorities then only become involved in the process once the intended parents return to the UK. The intended parents must seek entry clearance for the child.
An application for entry clearance will usually be made at the British Consulate of the host country where the surrogacy arrangements have taken place, but applications can take several weeks or months to process. If the intended parents decide to simply arrive at border controls with the child, then entry will be by discretion and not guaranteed.
Once entry clearance has been obtained it is still necessary to register the child as a British Citizen. This can be done at the discretion of the Home Secretary or automatically on the grant of a parental order. Thus, the immigration process is a complex one.
Surrogacy law reform
Currently, the UK Laws are under review and a Bill was due to be released in November 2022. However, this has once again been pushed back to Spring 2023. Details of the ongoing Law Commission project can be found here.
In summary, seeking an arrangement abroad can be complex. We highly recommend that you seek specialist legal advice on the most appropriate process for bringing your child to the UK.
For more information about Surrogacy please do get in touch with our Client Care Team or make an online enquiry. Please note, we are not able to give any advice with regards to immigration law.