Overseas surrogacy arrangements are often chosen for various reasons. In the United Kingdom, surrogacy is heavily regulated, and commercial surrogacy agencies cannot operate legally. Therefore, intended parents may opt for international surrogacy in countries where surrogates are more readily available, and local laws are more favourable. However, such arrangements can lead to complex issues involving immigration and nationality laws.
When it comes to the legal parentage of the child, in countries where surrogacy is legal, the birth certificate typically names the intended parents as legal parents in that country. Still, this may not automatically establish them as legal parents under English law or grant British citizenship to the child.
To bring a child born through overseas surrogacy into the UK, it’s crucial to seek legal advice before entering into the surrogacy arrangement. The process may involve applying for a British passport for the child at the nearest British diplomatic post, registering the child as British, or finding a way to bring the child into the UK before initiating an application within the country. The situation becomes even more complex if the intended parents are not British but are residents in the UK. At Wildcat law, our in-house international family law team is well-equipped to provide assistance. They possess extensive experience in handling child law cases that involve international aspects.
Becoming the legal parents in the UK often requires obtaining a Parental Order under the Human Fertilisation and Embryology Act 2008. To obtain such an order, certain criteria must be met, including domicile in England, reasonable expenses paid to the surrogate, genetic parentage, and the child living with the intended parent(s) at the time of the application.
The concept of “reasonable expenses” is essential in surrogacy arrangements, as payments beyond this threshold may require authorization by the Family Court.
Applying for a Parental Order is typically done within six months of the child’s birth, and it involves serving the application on the surrogate, who must acknowledge the service. A reporting officer is appointed to assess the living arrangements for the child and payments to the surrogate. If all conditions are met, the court grants a Parental Order, removing the parental rights of the surrogate and establishing legal responsibility for the child with the intended parents.
While most Parental Order applications proceed without complications, issues can arise in cases where intended parents haven’t sought legal advice, haven’t met the eligibility criteria, or face difficulties related to domicile, relationship breakdown, locating the surrogate, or immigration problems. It’s rare for surrogates to change their minds in the UK, but the agreement of the surrogate and her spouse/civil partner is necessary for a Parental Order to be granted.
Additionally, intended parents should consider making new wills to provide for the child in case of their passing, especially since they may not be considered the legal parents until a Parental Order is issued. Some surrogacy agencies may even require this as a precaution to protect the surrogate in such circumstances.
Obtaining legal counsel in your country of residence is of utmost importance. For instance, in Italy, there has been recent legislation criminalizing surrogacy. This means that couples who return to Italy with their baby following surrogacy treatment abroad may be subject to legal charges, and local authorities may not register their children.
Couples considering overseas surrogacy should be mindful of the potential risks related to human trafficking and the exploitation of surrogates, particularly those from disadvantaged backgrounds. An illustrative case from August 2023 involves a fertility clinic in Chana, Crete, which prompted the arrest of 8 individuals after at least 182 instances of the exploitation of women, particularly in the realms of egg retrieval and surrogacy.
The dismantled criminal ring, under investigation by the General Regional Police Directorate of Crete’s Organized Crime Department, was allegedly engaged in various illicit activities, including human trafficking via what they termed “industrial births,” unlawful baby adoptions, and fraudulent IVF treatments.
According to the Hellenic Police, the criminal organization exploited women facing vulnerabilities, utilizing them as egg donors and surrogate mothers, all while deceiving patients with fictitious embryo transfers and facilitating illegal adoptions.
It’s worth noting that the criminal organization typically profited between €70,000 to €100,000 per surrogacy program, with some cases reaching as high as €120,000. This serves as a stark reminder of the importance of thorough research and due diligence when considering overseas surrogacy arrangements to ensure the safety and ethicality of the process.