Connie Atkinson and Katie Newbury of Kingsley Napley LLP look at the legal challenges in bringing a surrogate child to the UK
Surrogacy as a way of having a family is often talked about more openly in the US than in the UK. As a consequence, people’s knowledge and understanding of the process differ greatly. In some US States, such as California, surrogacy is a mature industry in which surrogacy arrangements are well regulated and contracts (where a surrogate agrees to carry a child for intended parents for payment) are enforceable. However, documents or agreements which purport to be a surrogacy contract are not enforceable in the UK.
In our experience, both US nationals living in the UK (with a child born through surrogacy) and UK resident families who have been to the US for a surrogacy arrangement are often unaware that the foreign legal position in respect of their parentage is not automatically recognised here. US pre-birth orders (which take place before the child is born and declares the intended parents as the legal parents on birth and permits their names being included on the birth certificate) and the US birth certificates are not recognised here. As there is no international recognition of surrogacy laws, parents who have been to the US for their surrogacy arrangement (whatever their nationality), and those who lived for a period in the US or elsewhere after their child’s birth and before coming to the UK, will most likely need to apply for a Parental Order here. A Parental Order will extinguish the surrogate’s (and her husband’s if she is married) legal parentage and recognise the intended parents (who may already be the legal parents in the US) as the legal parents here.
It is important to know that, if you live here with your child (born in the US) but have not obtained a Parental Order, you do not have parental responsibility for your child and you therefore have no legal right to make decisions about where they go to school, medical treatment they should have or to apply for a passport for them. The surrogate will remain the legal mother (and her husband the legal father if she is married) and will be the only person with parental responsibility in this country. This is the case even if the surrogate has no genetic connection to the child and one or both of the intended parents do.
That is not to say that all parents currently living here should apply for a Parental Order. Their ability to do so will depend on whether they meet the criteria set out in the Human Fertilisation and Embryology Act 2008 and the length of time they intend to remain here. If you have had a child following a surrogacy arrangement abroad, whether this took place recently or years ago, you should take legal advice about the status of your parentage in this country if you are going to live here for any significant period of time.
The UK immigration and nationality position of children born in the US following a surrogacy arrangement can also be surprising to those familiar with the US approach to surrogacy.
While a child born following a surrogacy arrangement in the US will automatically be a US Citizen, if one or both of the intended parents is a British Citizen, it does not automatically follow that the child will be born with an entitlement to British Citizenship. Where one of the parents is British, one of the benefits of a Parental Order is that it acts to confer British Citizenship on a child born without it.
Where the intended parents are residing in the UK with limited or indefinite leave to remain, the immigration position may be more complex. There is no specific provision under the Immigration Rules for children born following a surrogacy arrangement. In such cases, we need to examine the specific facts of the case to see if either intended parent can meet the definition of parents set out in the Immigration Rules. Where this is not possible, it may be necessary to make a discretionary application for the child to be granted admission to the UK. In these cases, the visa application can take several weeks to be considered. It is therefore important for families to plan for a potential delay in returning to the UK following their child’s birth.
For both the transferral of British Citizenship and immigration position, the marital status of the surrogate may be an important factor when determining the legal position. This is because the UK considers the husband of a surrogate mother to be the child’s legal father for immigration and nationality purposes in most instances, thereby usually excluding either intended parent from automatically being considered a parent under either nationality law or the immigration rules.
Due to the complexities involved in resolving the UK immigration issues and the possible delays to travel, we would advise intended parents to seek advice at the earliest opportunity so that they can understand the position and plan accordingly.
The authors are Connie Atkinson and Katie Newbury, who are Senior Associates in Kingsley Napley LLP’s family and immigration law teams.
Kingsley Napley LLP run regular seminars on international surrogacy for intended parents. These are co-hosted with Richard Westoby, a surrogacy expert at Surrogacy with Confidence; author of "Our Journey: One Couple's Guide to U.S. Surrogacy"; and father to surrogate twins. Please contact us if you are interested in registering for future seminars.
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