International surrogacy raises complex legal issues because there is no unification of surrogacy law around the world.
Whatever your personal circumstances, whether you are married, living together, in a civil partnership or single, you must take great care to manage the legal issues from the start. This guide is designed to answer some frequently asked questions about surrogacy law and help you get a better understanding of the legal issues governing international surrogacy.
Is international surrogacy legal?
Surrogacy is a legal but restricted practice in the UK. Surrogacy laws were designed to cater for UK surrogacy arrangements and not those on an international scale.
It is not illegal for intended parents to enter into an international surrogacy arrangement. However, surrogacy laws in the UK were designed to prevent commercial surrogacy and this creates an international conflict of law if you enter into a commercial surrogacy arrangement abroad.
Can I legally do surrogacy if I’m married?
Surrogacy laws in the UK have historically been designed with married couples in mind.
Some foreign surrogacy destinations will only allow foreign nationals to enter into an international surrogacy arrangement in their country if you are a married couple.
A married couple will be eligible for a parental order in the English court to obtain parental rights for their surrogate born child, provided they meet all of the other legal criteria and the court considers this to be in the child’s best interests.
However, if you are married but separated from your spouse this could raise complex legal issues and you should first obtain expert legal advice before entering into a surrogacy arrangement.
Can I legally do surrogacy if I’m cohabiting with my partner?
Co-habiting couples are eligible for a parental order in the English court to obtain parental rights for their child in the UK, provided they meet all of the other legal criteria and the court considers this to be in the child’s best interests.
In some foreign surrogacy jurisdictions, you may be precluded from entering into a surrogacy arrangement if you are co-habiting with your partner.
Can I legally do surrogacy if I’m in a civil partnership?
Civil partners are eligible to apply for a parental order in the English court to obtain parental rights for their surrogate born child in the UK, provided they meet all of the other legal criteria and the court considers this to be in the best interests of the child.
If you are in a civil partnership but separated from your civil partner this raises complex legal issues and you should first obtain expert legal advice before you enter into a surrogacy arrangement.
In some foreign surrogacy destinations, you may be precluded from entering into a surrogacy arrangement if you are have entered civil partnership.
Can I legally do surrogacy if I’m single?
Single people are ineligible to apply for a parental order (the legal solution for surrogacy in the UK). This raises complex and difficult legal issues and you should obtain expert legal advice before entering into an international surrogacy arrangement.
Some foreign surrogacy destinations will not allow single foreign nationals to enter into a surrogacy arrangement in their country.
Intended mother: will I be my child’s legal mother?
English law on surrogacy states that your surrogate mother will be your child’s legal mother at birth, even if you conceive abroad with a foreign surrogate. This means that for English legal purposes an intended mother will not acquire legal parenthood for her surrogate born child at birth.
A foreign surrogacy destination may treat an intended mother as legal mother under their local law and name her on the child’s foreign birth certificate. This creates an international conflict of law with English law. English law will not automatically recognise a foreign birth certificate naming you as your surrogate born child’s mother.
Intended father: will I be my child’s legal father?
For English legal purposes, as an intended father you will be your surrogate born child’s legal father at birth if your surrogate is unmarried and you are the biological father.
If your surrogate is married or in a civil partnership, her husband or civil partner will be treated in English law as your child’s legal father/second parent unless it can be shown they did not consent to her conception and even if you are named as father on your child’s foreign birth certificate.
How do I get home to the UK with my child after the birth?
You will need to ensure that you can travel home safely to the UK with your surrogate born child after the birth.
Due to complex legal issues, some surrogate born children following international surrogacy are born stateless and parentless with no citizenship anywhere in the world. It is very important that you get expert legal help to tackle the relevant citizenship, nationality and immigration law issues so you can obtain the right travel papers for your child and handle arrangements as smoothly and quickly as possible after the birth.
How do I get a British birth certificate for my child?
The grant of a parental order (the legal solution for surrogacy in the UK) will trigger the issue of a British birth certificate naming you as your child’s legal parents under English law.
Why do I need a parental order?
It is important that you obtain a parental order to secure legal parental rights for your surrogate born child in the UK and legally protect your child.
Without a parental order, one or both of you will lack legal parenthood and parental responsibility for your child. You may also be committing a criminal offence in caring for your surrogate born child in the UK.
What’s the process for a parental order?
The process for a parental order following an international surrogacy arrangement is legally complex, reflecting the UK public policy restriction against commercial surrogacy and the international conflict of laws it creates.
The application is first made in the Family Proceedings Court, by completing a short form. Your application will then likely be transferred to a higher court, given the complex legal issues international surrogacy arrangements create.
The application must be submitted within six months of your surrogate born child’s birth (or you lose the opportunity to apply forever).
The court will then list a court date and appoint a parental order reporter (a CAFCASS officer) to prepare a written report for the court. The parental order reporter will meet with you at home, check that you have met all of the legal criteria and ensure that it is in your child’s best interests for a parental order to be granted. Preparation time for this report can typically be 3-6 months. It is generally lighter touch than a local authority reporting exercise for adoption.
The court will usually order you to submit detailed statements providing comprehensive information about your surrogacy arrangement. To ensure your parental order application is dealt with as smoothly as possible and to help your parental order reporter, it is sensible to get expert legal help with the preparation of detailed statements before you issue an application.
Once your parental order reporter has prepared a report and the court is satisfied that all of the legal issues have been dealt with, it will list your case for a final hearing where it will determine your application.
What are reasonable pregnancy related expenses?
There is no tariff in law as to what amounts to ‘reasonable pregnancy related expenses’.
The English court will carefully scrutinise the payments you make to your surrogate as part of any parental order application, reflecting the UK public policy restriction against commercial surrogacy. Each case is looked at separately by the English court, who has made it clear in a series of published cases that the amount must not be disproportionate to reasonable expenses (which can vary from place to place in the world).
What’s the importance of a specialist Will?
It is very important that you execute a specialist Will if you enter into an international surrogacy arrangement and conceive a child. This is because one or both of you as intended parents will not be your surrogate born child’s legal parents, meaning your child will have no automatic right of inheritance from you.
It is also important to appoint Trustees in your Will to manage your estate for your surrogate born child’s benefit during his/her childhood.
It is also helpful to appoint legal guardians for your surrogate born child in your Will (although this raises some complex legal issues and requires expert legal guidance)
Will I be legally entitled to maternity rights?
As an intended mother, you will not be automatically entitled to maternity leave and pay under English law following your child’s birth. This is because you will not initially be your surrogate born child’s legal mother.
However, some employers will offer discretionary leave and pay through negotiation and you may wish to explore this with them.
Will I be legally entitled to paternity rights?
You will only be automatically entitled to statutory paternity leave and pay if you are your child’s legal father at birth under English law.
How we can help
We can help in a number of ways, including:
- advising on who will be your surrogate born child’s legal parents at birth (particularly if you have complex personal circumstances or foreign connections)
- helping you navigate a safe path home to the UK with your child after the birth
- advising on your eligibility for a parental order (especially if you have complex personal circumstances, foreign connections or concerns about the amount paid to your surrogate)
- advising on the process for a parental order (including the preparation of detailed statements)
- representing you in a parental order application in court
- advising on interim legal measures pending the grant of a parental order (to legally protect you and your child)
- advising and preparing specialist Wills for you and your partner
If you would like to discuss your situation in more detail or you would like more information please contact us by email fertilityandparenting@porterdodson.co.uk or by telephone +44 (0)207 222 1244.
+44 (0)207 222 1244
