International Surrogacy
International Surrogacy: Frequently Asked Questions
International surrogacy raises complex legal and wider issues because there is no international harmonisation of surrogacy law.
Is surrogacy legal in the UK?
Surrogacy is a legal but restricted practice in the UK and there is a public policy restriction against commercial surrogacy in the UK.
If you enter into an overseas surrogacy arrangement, this will create an international conflict of law. This can leave a surrogate born child stateless and legally parentless at birth.
Will my surrogate born child be entitled to a British passport at birth?
Not in every case. Whether a surrogate born child is entitled to British citizenship and a British passport at birth will depend upon the legal parentage status of the intended parent’s under English law and their own citizenship status.
This can raise complex legal and practical issues associated with citizenship, nationality and immigration arrangements and intended parent/s’ ability to navigate a safe and effective path home with their surrogate born child after birth.
Who are the legal parents of my surrogate born child under English law?
A foreign parentage order or foreign birth certificate is not determinative under English law.
Who are the legal parents of my surrogate born child under English law?
Under English law, the surrogate and usually her spouse or civil partner are the legal parents of a surrogate born child at birth.
This means that one or both intended parents will lack legal parentage for their surrogate born child at birth under English law irrespective of the legal position overseas.
Do I need to apply for a parental order in the UK?
English law expects intended parents to obtain a parental order in the English Family Court following an international surrogacy arrangement.
Do I need to apply for a parental order in the UK?
This is a more complex legal exercise than a UK domestic parental order application because it involves foreign law and a foreign surrogate, agency and/or clinic.
The English Court will scrutinise the intended parent/s’ legal eligibility under section 54 or 54A of the Human Fertilisation and Embryology Act 2008, the circumstances of the surrogacy arrangement and the international legal issues and aspects carefully and will seek full supporting documentary evidence.
This can raise complex legal issues, including: navigating the legal requirement for one or both intended parents to be domiciled in a part of the UK, Chanel Islands or the Isle of Man, the involvement and consent of the surrogate and her spouse or civil partner, payments of commercial sums, navigating foreign law, policy and practice and UK public policy.
Will my foreign surrogate be involved in a parental order application?
A foreign surrogate and her spouse or civil partner will be legal parties to a parental order application for a surrogate born child in the English Family Court.
They will need to give their informed, full and valid legal consent to the grant of a parental order for a surrogate born child under English law. This can raise complex legal and wider issues that require careful management.
How does English law treat commercial surrogacy payments?
Commercial surrogacy payments engage UK public policy restrictions inherent in surrogacy law.
English law expects no more than ‘reasonable pregnancy related expenses’ to be paid unless the English Court is willing to retrospectively authorise commercial sum/s.
The English Family Court will therefore scrutinise in detail all commercial payments before deciding whether or not to approve these in the context of a parental order application.
Should I obtain specialist legal advice?
It is the consistent message of the English Family Court that intended parents should obtain specialist legal advice before they enter into an overseas surrogacy arrangement and establish a surrogate pregnancy. This helps intended parents understand the relevant legal issues, implications and outcomes, navigate the risks and make informed decisions.
We also provide a flexible range of legal services associated with an application for a parental order and to resolve issues around legal status (legal parentage and parental responsibility), care and upbringing of surrogate born children under English law.
You can read more about our surrogacy legal services and surrogacy cases here.