International Surrogacy - FAQs
Is international surrogacy legal?
There is no international harmonisation of surrogacy law and commercial surrogacy is lawful in some parts of the world and restricted or prohibited in other parts. Surrogacy in the UK is legally restricted for UK public policy reasons.
What are the differences between international surrogacy and domestic surrogacy?
Surrogacy arrangements in the UK are informal and surrogacy agreements are not legally binding. There is also a UK public policy restriction against commercial surrogacy in the UK. For some intended parents, a legally enforceable commercial surrogacy arrangement overseas is seen as a more attractive route to build their family.
How do I get home to the UK with my child after the birth?
This can be a complex and lengthy process. It is important that you are, as a family, able to travel home safely to the UK with your surrogate born child. There is no international harmonisation of surrogacy law leaving some surrogate born children stateless and parentless with no citizenship anywhere in the world. Expert legal advice will help you navigate nationality, citizenship and immigration laws and obtain the correct travel documentation.
How do I get a British birth certificate?
The grant of a parental order (see below) will trigger the issue of a British birth certificate for a surrogate born child.
Who will be the legal parents of our child?
Surrogacy law in the UK gives legal parenthood to the surrogate and (if applicable) her spouse or civil partner at birth. English law expects intended parents to apply to the English Family Court for a parental order to reassign legal parenthood and extinguish the legal status of the surrogate (and her spouse or civil partner, if applicable) for a surrogate born child.
Can anyone apply for a parental order?
Intended parents must meet specific legal criteria to be eligible to apply to the English Family Court and obtain a parental order for their surrogate born child. There are a number of legal restrictions including age, relationship and domicile status which makes it advisable to obtain specialist legal advice at the outset to effectively manage and navigate the legal issues.
What are the legal implications if I do not obtain a parental order?
There are a number of serious legal implications under English law if intended parents do not obtain a parental order for their surrogate born child, including (subject to eligibility and in the absence of other family court orders):
- One or both intended parents will lack legal parenthood for their surrogate born child.
- One or both intended parents will lack parental responsibility for their surrogate born child.
- The surrogate mother (and her spouse or civil partner) will retain legal parenthood for the surrogate born child.
- The surrogate mother (and her spouse or civil partner) will retain parental responsibility for the surrogate born child.
- Intended parents may have different legal status for their surrogate born child.
- One or both intended parents will lack automatic legal status to bring or defend legal proceedings for a surrogate born child.
- A surrogate born child will lack an automatic right of inheritance from one or both intended parents.
- A surrogate born child will retain a right of inheritance from his or her surrogate mother (and her spouse or civil partner).
- A surrogate born child's legal identity as the child of his or her intended parents will be affected.
- One or both intended parents may not be financially responsible for their surrogate born child.
- A surrogate mother (and her spouse or civil partner) will remain financially responsible for the surrogate born child.
- A surrogate born child will lack a British birth certificate naming both intended parents as his or her parents.
The failure to obtain a parental order can leave intended parents, surrogate born children and surrogate mothers (and their spouses or civil partners) in a legally unresolved position. This can create complex legal issues, difficulties and disputes, particularly in the event of:
- Death of one or both intended parents.
- Breakdown of the intended parents' relationship and disputes over the care and upbringing of a surrogate born child.
- A dispute arising between intended parents and a surrogate mother (and her spouse or civil partner) concerning a surrogate born child.
Why do we need specialist Wills?
Any parent or prospective parent should prepare a 'family proof' Will. This is particularly important in surrogacy cases because one or both intended parents will lack legal parental status for their surrogate born child at birth. A specialist 'family proof' Will can make provision for the care and financial security of your child and minimise difficulties for your child and his/her carers in the event of your death.
For further legal advice and assistance please contact Louisa Ghevaert, Partner and Head of the Fertility and Parenting Team at Michelmores, by email email@example.com or call +44 (0)207 7886382.