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International surrogacy law

There is no international harmonisation of surrogacy law. Some jurisdictions allow surrogacy on a commercial basis, others only allow altruistic surrogacy and some prohibit surrogacy altogether.

English law does not automatically recognise a foreign parentage order or a foreign birth certificate for a child born through an international surrogacy arrangement. This can create an international conflict of law which leaves children born through overseas surrogacy arrangements in legally vulnerable situations (in some cases stateless and legally parentless with no entitlement to citizenship or a passport and unresolved legal parentage). It can also leave intended parents without legal autonomy and parental rights for their surrogate born child for English legal purposes. This can cause difficulties for intended parents in a number of situations including:

  • Returning home to the UK with an overseas surrogate born child.
  • Relocating from overseas to the UK with a surrogate born child.
  • Overseas families with UK links and surrogate born children.
  • Situations where intended parents do not realise they need to obtain a parental order for a surrogate child born overseas.

Under English law a surrogate and her spouse or civil partner are legally recognised as the surrogate born child’s parents at birth.  A parental order (the bespoke legal solution for surrogacy in the UK) reassigns legal parental status from a surrogate and her spouse or civil partner to the intended parent/s. A parental order is a permanent legal order which transforms and resolves the legal status of a surrogate born child for English legal purposes and generates a British birth certificate naming intended parent/s as their child’s legal parent/s.

English law therefore expects intended parents to obtain a parental order in the English Family Court for a child born through an overseas surrogacy arrangement irrespective of a foreign parentage order or foreign birth certificate naming intended parents as the legal parents of their child. The failure to obtain a parental order for a surrogate born child under English law creates serious legal issues and difficulties, which include:

  • One or both intended parents lack legal parenthood for their surrogate born child.
  • One or both intended parents lack parental responsibility for their surrogate born child (e.g. day-to-day legal decision making powers to ensure their child’s welfare such as medical and educational decisions).
  • One or both intended parents is not financially responsible for their surrogate born child.
  • The surrogate born child lacks an automatic right of inheritance from one or both intended parents.
  • The surrogate parents retain legal parental status and rights for the child for English legal purposes.
  • The surrogate born child’s legal identity and wider legal family relationships remain unresolved.

We have leading surrogacy law expertise in successfully obtaining parental orders in the English Family Court for children born through international surrogacy arrangements. We can also, where necessary, obtain other family law orders to safeguard surrogate born children, parents and families under English law following international surrogacy. We provide supportive and bespoke legal advice, which includes:

  • Assessing and advising on intended parent/s eligibility for a parental order (including domicile status, treatment of commercial surrogacy payments, consent of a foreign surrogate and spouse).
  • Generic advice about citizenship, nationality and immigration law.
  • An application and process for an international parental order in the English Family Court.
  • Acquisition and operation of parental responsibility under English law.
  • Resolving arrangements for a surrogate born child in the event of a dispute with a surrogate, donor, clinic, agency or intended parent.
  • Obtaining alternative family orders in respect of a surrogate born child (including wardship order, child arrangements order, obtaining and restricting parental responsibility, adoption order).
  • Financial provision for a surrogate born child.
  • Expert witness surrogacy, donor conception and fertility treatment law service to support a claim for damages for surrogacy following medical negligence.

Our expert international surrogacy law services are flexible and accessible. We can provide on-off legal advice, bespoke legal representation in parental order and family law proceedings in the English Court and a legal mentoring service for those undertaking self-representation in legal proceedings.

Need a surrogacy lawyer?

Our leading international surrogacy law expertise is tailored to your personal situation, needs and wishes. We provide high quality legal advice and creative solutions because we operate at the forefront of rapidly evolving surrogacy law, policy and practice in the UK. We provide expert surrogacy law advice, assistance and legal representation concerning international surrogacy arrangements.

Our expert international surrogacy lawyer, Louisa Ghevaert, is the author of the specialist surrogacy law chapter in the ‘go-to’ UK legal practitioner textbook “The International Family Law Practice” (Sixth Edition 2021, Family Law) used by judges, barristers, lawyers and academics.

Since 2008, Louisa Ghevaert has dealt with many landmark and well known international surrogacy law cases. She has a proven track record in changing and improving surrogacy law, policy and practice and wider fertility law in the UK to help build and protect much-wanted families.

In 2008, Louisa Ghevaert successfully secured parental orders for British intended parents in the first UK case for overseas surrogacy in the Ukraine, Re X and Y (Foreign Surrogacy) EWHC 3030 (Fam).

In 2010, Louisa Ghevaert successfully obtained a parental order for British intended parents who conceived a child with a US surrogate in Illinois in Re L (a minor) [2010] EWHC 3146 (Fam). This legal ruling set a precedent that the welfare of the surrogate born child is decisive over the public policy restrictions around commercial surrogacy in the UK except in the clearest cases of abuse of public policy.

In 2011, Louisa Ghevaert successfully obtained a parental order for British parents whose surrogate born child was born stateless and parentless in the Ukraine and which warned of the risks of international surrogacy in the absence of specialist legal advice, In Re IJ (a Child) [2011] EWHC 921.

In 2013, Louisa Ghevaert successfully obtained a parental order for British intended parents who had a surrogate born child through a Californian (USA) commercial surrogacy arrangement. This case redefined the English Court’s approach to the authorisation of commercial payments given the UK public policy restriction around commercial surrogacy.

From 2014 -18, Louisa Ghevaert was an expert member of the Surrogacy UK Working Party Group for Law Reform and a contributor to its seminal report on surrogacy and law reform in 2015. This milestone report informed parliamentary debate on surrogacy law reform and policy in The House of Lords in 2016 and subsequent work to reform surrogacy law in the UK.

In 2018, Louisa Ghevaert successfully represented an intended mother in an international surrogacy and blended family law dispute concerning 2 surrogate born children (Indian surrogacy). This case marks a legal first in the legal status, rights and treatment of blended families in the UK following surrogacy, divorce, re-marriage, serious allegations of domestic violence and abuse, AB v CD, EF, GH & IL [2018] EWHC 1590 (Fam).

Through 2018, 2019 and 2020, Louisa Ghevaert’s expert surrogacy, donor conception and fertility treatment law evidence in the Court of Appeal and the Supreme Court resulted in further legal rulings for a woman left infertile following a delay in detecting cancer in smear tests and biopsies, enabling for the first time recovery of damages of approximately £558,000 for commercial surrogacy, donor conception and fertility treatment in California in the US, XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832 and Whittington Hospital NHS Trust v XX [2020] UKSC 14.

Through 2021 and 2022, Louisa Ghevaert successfully represented male intended parents and obtained parental orders for 3 surrogate born children following complex international conflicts of law between the US (California & Oregon), Denmark and the UK which created serious difficulties concerning the children’s legal parentage, citizenship and residence arrangements in Re X,Y and Z (Children: Parental Orders: Time Limit) [2022] EWHC 198 (Fam).

You can read more about these leading surrogacy law cases and Louisa Ghevart’s specialist surrogacy law practice below.

How we can help

Our expert surrogacy law services include:

  • Initial legal advice.
  • Legal packages (terms and conditions apply).
  • Bespoke legal advice tailored to your situation, needs and wishes.
  • Legal support and representation in court proceedings.

Package One

International surrogacy – legal review

This provides initial expert legal advice for people undertaking international surrogacy. It:

  • Provides legal advice on UK surrogacy law and its international application (including legal parentage, parental responsibility, a child’s upbringing and legal and practical implications arising).

Package Two

UK surrogacy arrangement – legal review

This provides initial expert legal advice for people undertaking UK surrogacy. It:

  • Provides bespoke legal advice on UK surrogacy law (including legal parentage, parental responsibility, a child’s upbringing and legal and practical implications arising).

Bespoke surrogacy law services

We provide expert tailored surrogacy law advice and representation in relation to legal proceedings for a surrogate born child in the English Family Court. Click on the links below to find out more, including:

For more information about our other bespoke specialist fertility, children and modern family law services see below or contact us by email or telephone.

Leading Surrogacy Law Cases

Louisa Ghevaert is an expert surrogacy lawyer with unrivalled legal expertise. She has dealt with many of the leading surrogacy cases in the UK (encompassing both UK and international surrogacy) and helped shape surrogacy law and policy in the UK, including:

Re X,Y and Z (Children: Parental Orders: Time Limit) [2022] EWHC 198 (Fam), an important legal ruling where the English High Court stepped in and granted parental orders for 3 surrogate born children following complex international conflicts of law between the US (California & Oregon), Denmark and the UK, extending the six-month statutory deadline for issue post birth and carefully navigating complex legal issues associated with the collapse of a US surrogacy agency, a pending criminal charge of assault against one of the intended parents and serious legal difficulties in Denmark where Danish authorities threatened to deport the children.

Whittington Hospital NHS Trust v XX [2020] UKSC 14, a landmark ruling where the UK Supreme Court by a majority of 3:2 dismissed the defendant hospital’s appeal. This enabled the recovery of damages for commercial surrogacy, donor conception and fertility treatment in the US for a woman rendered infertile and unable to carry a pregnancy following a delay in detecting cancer in smear tests and biopsies. Louisa Ghevaert gave expert evidence in the case, which featured in The Guardian (1 April 2020) and in BioNews (6 April 2020).

XX v Whittington Hospital NHS Trust [2018] EWCA Civ 2832, where for the first time the Court of Appeal awarded damages for the costs of fertility treatment, donor eggs and commercial surrogacy in California for a woman rendered infertile and unable to carry a pregnancy following a delay in detecting cancer in smear tests and biopsies. Louisa Ghevaert gave expert evidence in the case, which featured in The Telegraph 19 December 2018 and The Times, The Telegraph, The Mail Online and The Mirror on 27 January 2019.

AB v CD, EF, GH & IL [2018] EWHC 1590 (Fam), representing an intended mother in international contested assisted reproduction and modern family law proceedings in the High Court concerning 2 surrogate born children (Indian surrogacy). This case marks a legal first in the treatment of blended families in the UK following assisted reproduction, divorce, re-marriage, serious allegations of domestic violence and abuse as well as the legal status and identity of two surrogate born children, their biological, intended and social parents and arrangements for the children’s care and upbringing.

XX v Whittington Hospital NHS Trust [2017] EWHC 2318 (QB), being the first legal case in the UK in which the High Court awarded damages to a woman for altruistic UK surrogacy and fertility treatment following a delay in detecting cancer in smear tests and biopsies. This case marks the cross-section of fertility, family and medical negligence law. It highlights the importance of fertility, surrogacy and family law aspects when medical negligence renders a woman infertile and unable to carry a pregnancy. Louisa Ghevaert gave expert evidence in this case.

In JP v LP & Ors [2014] EWHC 595 (Fam), acting for the intended biological father in a high profile complex UK straight surrogacy dispute with his wife (neither a genetic nor a birth mother) following marriage breakdown and divorce and the the surrogate (a close friend). This case established for the first time a legal framework for cases where the legal criteria for a parental order cannot be met, including wardship, and featured in The Telegraph, BBC News and Mail Online (6 March 2014).

In Re C [2013] EWHC 2408 (Fam), obtaining a parental order for intended parents who conceived a child through a Californian (USA) commercial surrogacy arrangement. This case redefines the English Court’s approach to the authorisation of commercial payments in view of the UK public policy restriction against commercial surrogacy.

In Re IJ (a Child) [2011] EWHC 921, obtaining a parental order for British parents whose surrogate born child was born stateless and parentless in Ukraine. The case highlights the legal difficulties associated with foreign surrogacy and the importance of expert legal advice.

In Re L (a minor) [2010] EWHC 3146 (Fam), obtaining a parental order for British parents who conceived a child with a US surrogate mother (state of Illinois). The case marks a legal watershed ruling that the welfare of the child is decisive over the public policy ban on commercial surrogacy in the UK except in the clearest cases of abuse of public policy and featured in The Telegraph (8 December 2010).

In Re X and Y (foreign surrogacy) [2008] EWHC 3030 (Fam), being the first case in UK legal history to test the law for British parents conceiving through an international commercial surrogacy arrangement in Ukraine and which involved complex and groundbreaking legal issues, featured in BioNews (January 2009).

In the News

Our expert surrogacy lawyer Louisa Ghevaert also regularly commentates on surrogacy law in the press, podcasts, articles and publications.

“International surrogacy law: existing conflicts unresolved” (BioNews comment piece by Louisa Ghevaert, 14 March 2022).

Above The Law “Denmark threatens to deport surrogate-born children” (9 February 2022, featuring Louisa Ghevaert who acted for the male intended parents in this case).

The Mail on Sunday “I don’t think I’m doing anything wrong’: Businessman, 66, to be UK’s oldest surrogate father with his male partner, 40” (6 November 2021) featuring Louisa Ghevaert.

Podcast “The Intricacies of Fertility Preservation” interview with Louisa Ghevaert and Eloise Edington of Fertility Help Hub about fertility preservation, surrogacy and law reform (17 December 2020), also on podcast apps Apple, Spotify and Soundcloud.

The UK Supreme Court awards damages for commercial surrogacy (BioNews, comment piece by Louisa Ghevaert, 6 April 2020).

Apple podcast on Speak From The Body with Avni Touch entitled “Fertility law for modern families with Louisa Ghevaert” (26 February 2020).

Law Commission: reforming surrogacy law – (July/August 2019 edition of Resolution’s The Review Magazine).

Anything but child’s play: surrogacy and thorny issues of identity, parenthood and status in modern families (Family Law, 29 August 2018).

You can read more here.

If you require legal assistance or wish to discuss international surrogacy law contact us

 enquiries@louisaghevaertassociates.co.uk

 +44 (0) 20 7965 8399

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