International Surrogacy Lawyers London, UK | Hudson McKenzie
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International Surrogacy Lawyers London

Surrogacy is an arrangement whereby a woman carries and bears a child on behalf of the ‘intended or commissioning parents’.

Under English Law, the woman who carries and bears the child is the legal mother. If she is married at the time she becomes pregnant, English law will see her husband as the legal father, regardless of the genetic make-up of the child.

Due to the legal limitations and high costs related to surrogacy, international surrogacy is often an attractive option.

If you are a UK national couple considering conceiving with a foreign surrogate, there are several issues to consider, including immigration- namely, issues pertaining to Entry Clearance, British Registration and Citizenship in order to bring the child to the United Kingdom.

Important points to consider

  • Any child to be brought into the UK, who is born as the result of a surrogacy arrangement, will be subject to UK law.
  • Where neither of the commissioning couple have a genetic connection with the child, there will be no possibility of UK legislation allowing for the commissioning couple to obtain a Parental Order.
  • No matter what the genetic make-up of the child, UK law sees the woman who carries and bears the child as the legal mother. If she is married at the time of her artificial insemination or the implantation of an embryo, UK law will see her husband as the legal father, unless it is shown that he did not consent to the implantation of the embryo or the artificial insemination. This presumption may be rebutted by evidence that the commissioning man is the genetic father. As the surrogate mother is recognised as the legal mother, section 30 of the Human Fertilisation and Embryology Act 1990 (HFE Act 1990) provides a procedure by which the commissioning couple can acquire parental rights. The surrogate mother and the “legal” father must give full and free consent for the parental order. Such consent is not effective until the child is at least six weeks old, and exists to ensure that the surrogate mother is sure she has made the correct decision.
  • Where a surrogate mother is a foreign national residing abroad, even if her home country sees the commissioning couple as the “parents” and issues documentation to this effect, UK law and the Immigration Rules will not view them as “parents”. Only where the surrogate mother is single is there a chance the sperm donor/commissioning male as the legal “father”.

There are three main possible scenarios in a surrogacy arrangement (depending upon the genetics involved), and there are three corresponding legal routes whereby a child born as the result of a surrogacy arrangement may be brought into the United Kingdom, (depending upon the recognised legal connection between the commissioning the resulting child).

Scenario A- The male of the commissioning couple has a genetic connection with the child and the surrogate mother is unmarried.

Where the male of the commissioning couple provides the sperm, (and thus has genetic connection with the child), and the surrogate mother is unmarried, the male who provides the sperm will be considered for immigration and nationality purposes, as the resultant child’s father, so long as he is so identified on official documentation and can prove his connection by way of accredited DNA evidence.

He may be able to establish his paternity to the extent that he can pass on British citizenship to the child, (obviously only if he is himself a British citizen), or be able to sponsor the child’s entry to the United Kingdom under Paragraph 297 of the Immigration Rules as a dependent child. (The latter is only possible where the surrogate mother gives up parental responsibility for the child.)

If the child is brought to the UK and an application is made to the courts for a Parental Order under Section 30 of the HFE Act within six months of the child’s birth (but excluding the first six weeks of the birth and all the other requirements of the Act are fulfilled), a Parental Order may be obtained in respect of the commissioning couple thus conferring parental responsibility on them.

Scenario B- The male of the commissioning couple has a genetic connection with the child and the surrogate mother is married.

Where the male of the commissioning couple has a genetic connection with the child and the surrogate mother is married, the male who provides the sperm will not be considered as the resultant child’s father if the child was conceived as a result of artificial insemination or the implantation of an embryo, unless it is shown that the surrogate mother’s husband did not consent to the treatment.

This is because for the purposes of immigration and nationality, UK law views the woman who carries and bears a child as the child’s mother and her husband as the father. The commissioning man will be unable to pass on his British citizenship to the child, nor be able to sponsor the child’s entry to the United Kingdom under the Immigration Rules.

In order to bring the child to the UK, the surrogate mother and her husband will have to give up their parental responsibility and an application will have to be made for entry clearance to bring the child to the UK outside the Immigration Rules.

If this is successful and the child is brought to the UK, and an application is made to the courts for a Parental Order under Section 30 of the HFEA within six months of the child’s birth, (but excluding the first six weeks after birth, and the other requirements of the Act are fulfilled), a Parental Order may be obtained in respect of the commissioning couple, i.e. the man who provided the sperm, (and who can demonstrate this by way of DNA evidence) and his wife.

Scenario C- The female of the commissioning couple has a genetic connection with the child, (the surrogate mother can be unmarried or married).

Where the female of the commissioning couple has a genetic connection with the child, no matter what the surrogate mother’s marital status, the female who provides the egg will not be considered as the resultant child’s mother.

In order to bring the child to the UK the surrogate mother and, if she is married, her husband, will have to give up their parental responsibility and an application will have to be made for entry clearance to bring the child to the UK outside the Immigration Rules.

If this is successful and the child enters the UK and an application will have to be made to the courts for a Parental Order under Section 30 of the HFEA within six months of the child’s birth.

In these circumstances it will be necessary for one of the commissioning couple to be able to demonstrate both to the courts and to the entry clearance officer that a genetic connection with the child exists, by way of DNA evidence which will be of sufficient integrity to be acceptable to the UK courts.

Without this level of proof, the UK courts will not grant a Section 30 Parental Order and so entry clearance will not be granted outside the Immigration Rules at the discretion of the Secretary of State.

The legal issues associated with international surrogacy are immensely complex, and we strongly recommend specialist legal advice at the outset to prevent unforeseen problems and give you a better chance of reaching a positive outcome.

Our team of London Immigration Lawyers can provide advice and assistance in relation to immigration issues resulting from international surrogacy arrangements namely:-

  • Advising on issues of immigration, entry clearance, citizenship.
  • Providing guidance on UK surrogacy law, including parenthood and domicile status.
  • Helping parents prepare parental order applications.
  • Liaising with foreign lawyers for dealing with domestic matters, i.e. FRRO clearance.

Contact our Surrogacy Solicitors London, UK

For further information, please contact our Surrogacy lawyers in London – click here or call us on +44(0) 20 3318 5794.

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