The use of surrogacy as a path to parenthood has steadily increased over the years, and while it is difficult to determine how many parents look abroad for their surrogate, data from the Children and Family Court Advisory and Support Service (CAFCASS) suggest that more than half of surrogacy arrangements are international, with the USA being the most favoured country by UK families.
If you are currently embarking on the journey of overseas surrogacy, it is an exciting, hopeful and usually emotional time – navigating the emotions alongside the legalities of this complicated process can be challenging for couples. Whether you are a British national or hold a visa or settled status in the UK, it is important to understand this complex intersection of immigration, nationality and family law. To make the journey as smooth as possible, we’ve outlined the immigraiton-related steps to be aware of before starting your journey.
Before bringing your baby home, a determination of the legal parents of your child must be made. Under UK law, the intended parents are not the legal parents at birth of a baby born through a surrogate mother. A parental order is needed to make the intended parents the legal parents of the child.
The position on who are the legal parents of the child at birth will depend on the laws of the country they are born in. Under UK family law and British nationality law, the legal mother is the person who gave birth to the child, i.e. the surrogate mother, regardless of whether they are biologically related to the child. Generally, the surrogate mother’s spouse is the legal father, unless she is not married, in which case the genetic father (if known) is the legal father. While immigration legislation does not define the legal mother and father, the Home Office guidance on the matter adopts the family law position.
There are numerous requirements for the making of a parental order to assign legal parenthood to the intended parents, including that the gametes of at least one of the intended parents have been used to create the embryo and that the intended parent(s) applying for the order are domicile in the UK. There are also strict timing requirements regarding when the order must be made in respect of the child’s birth, which are important to consider in light of the timing of the surrogate mother’s consent to the order. Once the parental order has been made, a birth certificate will usually be re-issued in the name of the intended parents.
Things become further complicated in surrogacy cases where the law on legal parenthood at birth differs between the UK and the country the child is born in, and so it is important to take advice on this matter from a family lawyer specialising in overseas surrogacy cases.
British nationality law and surrogacy
Under British nationality law, you are only entitled to automatically pass citizenship to a child born outside the UK for one generation. British nationality law distinguishes between ‘British otherwise than by descent’ (who can pass their citizenship to their children born outside the UK automatically) and ‘British by descent’ (those born outside the UK themselves, who cannot automatically pass their citizenship to a child born overseas).
In some cases, a child born through overseas surrogacy may automatically acquire British citizenship at birth, for example, where the intended parent is the legal father at birth and is British otherwise than by descent; or where the surrogate mother or their spouse happen to be British otherwise than by descent.
In other cases, the child may be able to apply to register as British, for example, where the child’s grandparents were British otherwise than by descent but the legal parent was British by descent because they were born outside the UK, and certain other requirements are met. The Home Office will also normally register a child as British in specific cases relating to surrogacy, such as where the intended father is the biological father of the child but the surrogate mother is married (and her spouse is therefore deemed the legal father); the intended mother is British; or where the intended father is not the biological father and therefore cannot pass on citizenship.
It is important to note that it is entirely possible, where the laws on nationality and legal parenthood differ between the UK and the country of birth, for a child born through surrogacy to be born stateless. This can further complicate bringing the child home from a practical standpoint, as it is necessary to apply for a Travel Document issued to stateless persons.
Immigration law and surrogacy
Where one intended parent is British or settled in the UK but the child is not born British or entitled to register as British prior to entry to the UK, then depending on the facts of the case, they may either need to apply under the Immigration Rules (giving the child Indefinite Leave to Enter the UK), or apply for Leave Outside the Immigration Rules in line with Home Office guidance.
Where no parent (surrogate or intended) is British or settled in the UK (and instead holds a visa or Pre-Settled Status in the UK), the usual course of action is to apply for a dependant visa, the rules for which will depend on the circumstances of the case.
As is clear from the information set out in this blog, the intersection between family law, nationality law and immigration law is extremely complex, particularly when taking into consideration jurisdictional differences between the UK and the law of the country the child is born in.
The guidance in this blog provides a high-level overview of this complicated area of law, and does not go into the very detailed requirements and documentary evidence applicable to each route. It is therefore highly recommended to take expert advice to ease this side of your journey to parenthood, to help smooth what can be an emotional yet exciting process.
How Gherson can assist
Gherson’s Immigration Team are highly experienced in advising on UK visa matters. If you have any questions arising from this blog, please do not hesitate to contact us for advice, send us an e-mail, or, alternatively, follow us on X, Facebook, Instagram, or LinkedIn to stay-up-to-date.
The information in this blog is for general information purposes only and does not purport to be comprehensive or to provide legal advice. Whilst every effort is made to ensure the information and law is current as of the date of publication it should be stressed that, due to the passage of time, this does not necessarily reflect the present legal position. Gherson accepts no responsibility for loss which may arise from accessing or reliance on information contained in this blog. For formal advice on the current law please do not hesitate to contact Gherson. Legal advice is only provided pursuant to a written agreement, identified as such, and signed by the client and by or on behalf of Gherson.
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