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| Azeem Mohiuddin

No Child’s Play: Overseas Surrogacy Agreements and UK Immigration Law

Many parents considering entering into a surrogacy arrangement are increasingly looking at their options available overseas. According to the British Surrogacy Centre, ‘hundreds of couples’ travel to the USA and other international destinations in search of surrogates every year.

Nonetheless, and perhaps because of the moral, social and ethical factors to consider, the law on overseas surrogacy and its relation to immigration law remains complex and uncertain. This is compounded by the lack of updated advice from the Home Office (the most detailed note being published in 2009).

In this blog, we take a look at some of the general principles to understand and the potential routes of entry to the UK for the surrogate child.  

General principles  
 
1. The Parents and the law
 
Under UK law, the mother of a child is always considered to be the woman who carries and gives birth to the baby. If she is married at the time of the child’s conception, her husband will generally be considered the father. Furthermore, UK law will always be enforced regardless of the law of the country where the child was born.
 
2. Parental Responsibility
 
Parental responsibility refers to the duties, powers, responsibilities, and authority a parent has for a child.  In some cases, in order to transfer parental responsibility from person to another person, a Parental Order needs to be applied for from the UK courts between 6 weeks and 6 months after the child’s birth.
 
3. Commissioning couple
 
The commissioning couple are those who enter into the surrogacy agreement to become the parents of the child. In most cases, one of the commissioning parents will have a genetic link to the child.  If there is no genetic link to the child, however, there is no available route for the child to enter the UK.
 
Entering the UK with the child
 
Most surrogacy cases will fall into the scenarios detailed below. The route of entry to the UK for the child will, therefore, depend on the scenario at hand:
 
1. Unmarried surrogate mother
 
Where the surrogate mother is unmarried and the male of the commissioning couple provides the sperm, he will be considered as the child’s father, so long as he is identified as the father on official documentation and can prove his connection by way of accredited DNA evidence.
 
If the commissioning father is a British citizen (and was born in the UK), the child should, therefore, be deemed to be British by descent. An application for a British passport can be made at the nearest British Diplomatic Post in the child’s country of birth. Once issued, the child will be able to travel freely to the UK with no need for a visa.
 
If the commissioning father is not a British Citizen, however, or is unable to pass on his citizenship to the child,  then an application to enter the UK under the Immigration Rules may instead be possible. In other words, the child would need first need to apply for a visa to enter the UK.
 
2. Married surrogate mother or the commissioning mother having the genetic connection.
 
In these circumstances, the matter becomes much more complex. The genetic make-up of the child would be irrelevant as the commissioning parents would not automatically be deemed to be the legal parents.  
 
Provided either of the commissioning couple has a genetic connection with the child, entry outside the Immigration Rules at the discretion of the Secretary of State may be possible. Such entry clearance will only be granted on condition that a Parental Order is applied for and where evidence suggests that such an order is likely to be granted.
 
Pre-planning is key
 
If you are considering entering into an international surrogacy agreement, you will no doubt have a number of issues to consider. As one can see above, however, with so many variables at play, it is vital that couples seek specialist immigration and family law advice well in advance of embarking on such a complicated journey.   
 
Furthermore, it is strongly advisable to contact the relevant British Diplomatic Post as far in advance as possible to ascertain what, if any, support and information they can provide. 
 
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