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International Surrogacy A guide to bringing your baby home to the UK
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International Surrogacy | A guide to bringing your baby home to the UK
International Surrogacy A guide to bringing your baby home to the UK Who is this guide for? •
Couples who intend to enter into a surrogacy arrangement aboard but wish to bring their child(ren) back home to the UK
•
Fertility clinics, surrogacy agencies etc who operate outside the UK but have patients from the UK who seek a surrogacy arrangement and intend to return to the UK with the child.
Why do I need to read this guide? Some parents who wish to have a child using surrogacy choose to enter into the arrangement abroad. Every country has different rules about the legality of a surrogacy and the steps which must be followed both before and after the child is born. Whilst it is important that the laws of that country are followed, parents who intend to return to their home in the UK as the child’s legal parents must also be aware that there is an additional legal process which must be followed once they are back in the UK.
This is because under UK law, the parents who commissioned the surrogacy and who intend to raise the child(ren) are not automatically considered within UK law to be the child’s legal parents. This remains the case even if the parents are considered as the child’s legal parents under the laws of the country in which the surrogacy took place.
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International Surrogacy | A guide to bringing your baby home to the UK
What needs to be done on returning to the UK?
What is involved in the UK court process?
Under UK law, the woman who carries and gives birth to the child is always the child’s legal mother. The identity of the second legal parent varies depending upon a number of factors such as whether the surrogate mother was married and whose sperm was used. In a surrogacy arrangement the intended parents need to take legal steps to become the legal parents otherwise the legal mother always remans the surrogate and the legal father may be someone other than the intended father.
Whilst going to court is a daunting prospect for many, if care and planning has been taken before and during pregnancy and after the child is born, the process can be simplified. Careful pre-planning ensures the strict criteria the Court requires to be met before a potential order can be put in place.
For that reason, on their return to the UK, the intended parents need to apply to the court for a Parental Order which transfers the status of legal parent from the surrogate mother and the other parent to the intended parents, at the same time as dismissing the surrogate parents’ rights and responsibilities toward to the child. At the end of the process, a new birth certificate is issued for the child naming the intended parents as the child’s legal parents.
If all runs smoothly, the process usually requires two Court hearings. At the first hearing, the couple are required to gather the necessary evidence of satisfaction of the legal criteria and a Court Reporting Officer is usually appointed to carry out background checks. At the second hearing, the judge determines whether or not the Court can make the Parental Order. Having readily accessible paperwork to demonstrate the criteria are met will help to make the court process run smoothly.
! It is important that the application to court is made no less than 6 weeks but no more than 6 months after the child has been born!
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International Surrogacy | A guide to bringing your baby home to the UK
What are the criteria? Criteria
Suggested considerations
The gametes of at least one of the people applying for a Parental Order must be used to create the embryo placed into the surrogate mother.
The treating clinic must have clear records to show how the embryo was created.
Criteria
Suggested considerations
The people applying for a Parental Order must be married, in a civil partnership or an “enduring relationship”. Certain relationships such as between siblings, grandchild/grandparent etc. are not permitted.
For applicant’s who are married or in a civil partnership, their original marriage/civil partnership certificate would likely suffice
Single people cannot apply.
! This is going to change in the coming months.
Criteria
Suggested considerations
At the time of the application and at the time of the making of the Parental Order, the child must be living with the applicant parents and one parent must be domiciled in the UK.
The Reporting officer will check this but it is important to remember that the child must be living with the applicant parents before the application is made. The child’s immigration status must ensure that the child can return to the UK and be living with the intended parents before the 6 month deadline on making the application of a Parental Order.
The child’s birth certificate must be retained as this is required for the court application.
For others, it is necessary to prove that the relationship is “enduring” by gathering together evidence.
If there is a question mark as to one of the commissioning parents connection with the UK, further guidance should be sought before commencing the procedure.
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International Surrogacy | A guide to bringing your baby home to the UK
Criteria
Suggested considerations
The surrogate mother and any other person who is considered as the child’s second parent must freely consent to the making of a parental order.
It is important that clear written records are kept to confirm that such consent has been received. Any amendments to this consent must be carefully noted. The contact details of the surrogate and the second parent should be retained and available should the reporting officer wish to make enquiries to confirm consent was given.
Consent cannot be given before the child is six weeks old.
Criteria
Suggested considerations
No money or financial benefit must have been paid to the surrogate save for reasonably incurred expenses.
Accurate records of any payments made must be kept.
Key Contacts Liz Bottrill Partner liz.bottrill@laytons.com +44 (0)161 214 1600
David Burrows Solicitor david.burrows@laytons.com +44 (0)161 214 1600
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This information is offered on the basis that it is a general guide only and not a substitute for legal advice. We cannot accept any responsibility for any liabilities of any kind incurred in reliance on this information. This publication represents the legal position as of March 2018.
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