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.
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.
Surrogacy reform is on the cards with Law Commission review on surrogacy
There is nothing quite like welcoming a new baby into the world. As a children lawyer I have been privileged to help parents secure Parental Orders after they have had a child through a surrogacy agreement. I therefore know just how stressful the months leading up to the birth of the child are as well as the worry of how quickly a parent can secure a Court order. For many parents they couldn’t relax and enjoy their baby until all the legalities were sorted out.
Surrogacy laws were first introduced about 30 years ago. Society and the medical options available to couples have changed over the years. Many parents, medics and legal professionals have concluded that the current surrogacy legislation, once thought to be ground breaking, is no longer ‘’ fit for purpose’’ and doesn’t meet the needs of the surrogate, the parents and, most importantly, the baby.
Under current English law a surrogate mother is the legal mother of the child even if she has no genetic link to the baby. A Parental Order, in favour of the parents, can only be applied for after the baby has been born and various conditions have to be met, namely:
The application must be made within six months of the child’s birth;
The surrogate mother must fully consent to the Parental Order and must understand that she will be giving up parental rights;
No payment should have been made to the surrogate mother save for necessary reasonable expenses. The Court can give retrospective approval to payments over and above reasonable expenses;
There must be a genetic connection between the child and at least one applicant for the Parental Order;
At the time of the application and the making of the order the child’s home must be with the person applying for the order;
Either or both applicants must be domiciled in the UK
There is a concern amongst professionals that current UK surrogacy laws and conditions encourages the use of international surrogates where, in some countries, there is less regulation and protection for all participants.
The Law Commission reforms will consider changes to the law relating to:
the legal parentage of the baby;
the regulation of surrogacy including payments;
the rights of the child to obtain information about their origin and the surrogacy arrangement;
the rights of the surrogate, parents and child and how best to avoid exploitation in the surrogacy process.
The Commission says that a report on proposed changes in the law will be available within a year. There will then need to be an impetus to get any recommended changes in current surrogacy laws into new legislation so that all involved in surrogacy arrangements feel that the law is working to protect them and the child.
For help on any aspect of children law please contact us