We often read in the papers about successful surrogacy arrangements involving a surrogate mother who lives outside the UK. That is because it is difficult for intended parents to find a surrogate mother in the UK. However using a foreign-based surrogate mother through an international surrogacy arrangement brings other legal and practical challenges.
International surrogacy and the law
Whether or not a child who is born to a surrogate mother is linked genetically to the intended mother or father (or both), under UK law, the surrogate mother who bears the child is the legal mother.
Many intended parents assume that the rules are different if they use a surrogate mother who is based in a foreign country. They are not. Even if the country where the surrogate mother nationality recognises the intended parents as the legal parents of the child, UK children and immigration law does not. That can make international surrogacy arrangements and immigration very complicated.
International surrogacy arrangements
In the UK surrogacy arrangements are not enforceable as a contract between the surrogate mother and the intended parents. Different laws apply to surrogacy agreements in other countries. However, even if a surrogacy agreement is legally enforceable in the country in which the surrogate mother is a national, the intended parents cannot bring court proceedings to enforce the surrogacy agreement in the UK.
International surrogacy and immigration
If a child is born to a surrogate mother who is not a British citizen then complex surrogacy and immigration law will determine the nationality of the child. Those rules will also determine if and how the child can enter the UK.
The child’s nationality and immigration status may depend on whether or not the intended father is genetically linked to the child and, furthermore, whether the surrogate mother is legally married or not.
If you are contemplating international surrogacy, it is vital that you take expert legal advice from children and surrogacy law solicitors as well as advice from immigration law experts.
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International surrogacy and parental orders
Under UK children and surrogacy law, a child born to a surrogate mother is the legal child of the surrogate mother. Intended parents can apply to the family court for a parental order. This order extinguishes the legal rights of the surrogate mother and makes the intended parents the child’s legal parents. The intended parents then have parental responsibility for the child.
In order for a parental order to be made various conditions have to be met such as:
- There must be a genetic link between the child and at least one of the intended parents; and
- The surrogate mother must consent to the parental order no earlier than 6 weeks after the birth of the child.
If you are considering an international surrogacy arrangement, it is vital that you take advice on the evidence required of the surrogate mother’s consent to the making of the parental order. Failure to secure adequate evidence of the surrogate mother’s consent could create problems with the parental order application.
International surrogacy and Evolve Family Law
Evolve Family Law is a niche firm of family law solicitors. Evolve Family Law has substantial expertise in children and surrogacy law. If you are contemplating a surrogacy arrangement, either in the UK or abroad, please contact us for advice on your options and for information on applying for a parental order.