International surrogacy is a fast-growing area, and increasingly popular for couples resident in the UK who are unable to find a surrogate mother in this country.
However, it is important for prospective parents looking abroad to understand that the surrogacy agreement will not only need to comply with legal requirements of the country in which the child is born, but also those of the UK. For example, there are many countries where the surrogate’s name will not appear on the birth certificate but this makes no difference under UK law, where the surrogate mother will continue to be considered the legal parent until the parental order is final.
This means prospective parents need to have a full understanding of surrogacy law in two countries, as well as bearing in mind any potential complications in bringing their baby back to the UK.
In surrogacy cases, the child will automatically be British only if the surrogate mother is unmarried, the intended father is genetically related to the child and the father is allowed to pass on British nationality. In these relatively straightforward cases, the parents only need to apply for a passport.
In other situations, a host of factors will determine the course of action the couple need to take, including:
- Marital status of the surrogate mother;
- Genetic relationship of the intended father/mother to the child;
- UK immigration status of the intended couple i.e. are one or both British citizens/permanent residents? If not, what type of UK visa do they hold;
- Can the baby acquire citizenship in its birth country?;
- Legal status of surrogacy in the birth country;
- Likelihood of a Parental Order being granted in the UK;
- Has a court recognised the intended parents as the baby’s legal parents?;
- Whether the intended parents are in a same-sex or heterosexual union;
- Domicile and financial status of the intended parents;
- Does the baby live with intended parents?
It is worth bearing in mind that in a very worst-case scenario, the baby may not be eligible for British citizenship or the citizenship of its birth country. Without a passport of any kind, there is the potential risk of the baby being stranded abroad.
This means that advance planning is absolutely essential in cases where your baby is born abroad. There are numerous variables and no two cases are the same. You can find a general guide to the three main routes of bringing your baby back to the UK in the following blog ‘International Surrogacy and how to bring baby back to the UK’.
Finally, it is important to remember that nearly all the factors relevant to a UK-based surrogacy will also apply to an international surrogacy, and so you are advised to read our Surrogacy page for more information. However, immigration and family solicitors from our Forming Families team will work together to ensure the two aspects run in tandem, as smoothly as possible.
How We Can Help
- Legal advice to those considering surrogacy in different countries on general nationality and immigration issues;
- Legal advice on specific immigration and nationality issues relating to particular countries;
- Help you apply for British citizenship for your child;
- Help you apply for a British passport for your child;
- Legal advice and guidance to guide you through the UK application process if your child needs a visa to come to the UK;
- Prepare and represent you at an appeal if your child’s visa application has been refused
- We can also help in all the ways listed on our ‘Surrogacy’ page as most requirements are also applicable to international surrogacies.