International surrogacy – what to watch for
On 25 and 26 June our Rose-Marie Drury and Amy Starnes attended the Law and Practice of Surrogacy conference at Cambridge University to share ideas with professionals and academics from across the world about different approaches to surrogacy.
Unlike some areas of family law, such as international adoption, there is currently no international agreement which ensures that the legal parentage of children born through surrogacy or through the use of donors is recognised on a cross-border basis. At the moment each country determines parentage according to its own laws and there is no guaranteed recognition of parentage acquired in another country.
Many intended parents in England often travel overseas for surrogacy. This is for a variety of reasons but often includes the wider availability of surrogates, the cost of surrogacy and fertility treatment, the enforceability of surrogacy agreements or availability of pre-birth orders.
As well as the practical issues such as cost and availability of surrogates it's vital for intended parents considering international surrogacy to consider the legal issues in the different countries involved carefully before commencing their surrogacy journey. We explore some of the key legal issues below.
Who will be a legal parent in the child's birth country and who will be a legal parent in the country the child will live in?
Different countries apply different rules and the position is often complex. Whether or not intended parents can become legal parents in the child’s birth country (if it is not England) will depend on that country’s laws.
In England even if intended parents are recognised as legal parents in the birth country they must apply for a parental order in England to both be recognised as the legal parents in England. If they do not apply for a parental order in England the surrogate will remain the legal mother and who is the legal father will depend on the circumstances. This is regardless of the legal position in the birth country.
If intended parents move abroad in the future it is also important that they check whether or not the parental order they have obtained in England will be recognised as granting legal parentage in the country they are moving to.
What country will the child be eligible for a passport from and will they need a visa or special permission to enter the UK?
Whether or not intended parents can immediately apply for a British passport for their child if they are born outside the UK is based on who is a legal parent at birth under English law and whether the child is a British citizen by descent.
If the child is not eligible based on legal parentage then it may be possible to register the child as a British citizen based upon their genetic parentage and to then apply for a British passport.
Some countries grant passports to children born there and the child can then travel to the UK on that passport (although a visa or entry clearance to the UK may be required depending on the country). However, in a number of countries the position depends upon who is a legal parent under the law of that country (which may well be different to English law). This can lead to situations where a child is not eligible for a passport in the UK or in their country of birth.
If a child is not eligible for a British passport or a passport in their country of birth then intended parents may need to apply for immigration clearance or permission for the child to enter the UK outside the immigration rules.
Waiting for a passport and/or visa or clearance can take considerable time. Intended parents need to plan carefully how their child will be able to return to the UK, to take into account how long that is likely to take and the arrangements for their child’s care pending their entry to the UK.
Is one of the intended parents domiciled in the UK, Channel Islands or Isle of Man?
To be able to apply for a parental order in England at least one of the intended parents must be domiciled in the UK, Channel Islands or Isle of Man. If they cannot demonstrate they are domiciled here then they will not be eligible for a parental order even if they live here as a family. This can therefore be a crucial issue for international families.
Domicile is a complex legal concept. Everyone has a domicile of origin (based on their parents’ domicile at the time of their birth) but it is possible to acquire a domicile of choice. Where you are domiciled is essentially where you consider your spiritual home and the place you belong to be and is the place you always intend to return to one day. It is possible not to live in a country for many years but to still be domiciled there and each individual situation needs to be considered carefully.
If intended parents live abroad but are still able to demonstrate a domicile in the UK, Channel Islands or Isle of Man then they can apply for a parental order in England. Whether or not the legal parentage granted by that parental order will be recognised by the country in which they are living will depend upon that country's laws.
Although we hope that the law in England relating to parental orders will change in the future and that there will be an international convention to recognise legal parentage in cross-border situations at the moment it’s clear that different countries take very different approaches. Intended parents should therefore plan carefully and ensure they know what to expect before commencing their surrogacy journey.