In a recent video Keelin Claffey, solicitor at Latitude Law, explains how surrogacy works under UK law, including parental orders, British nationality, and bringing a child to the UK from overseas. Surrogacy is a complex and sensitive area, especially when it intersects with immigration and nationality laws. If you are considering building your family through surrogacy, understanding the legal framework in the UK is essential to navigate the process smoothly and ensure that your child’s status and rights are fully protected.
Understanding Surrogacy and Its Legal Framework in the UK
Surrogacy arrangements in the UK are governed by the Surrogacy Arrangements Act 1985, which sets the foundation for how these agreements are treated legally. One of the crucial points to understand is that surrogacy agreements are not enforceable in the UK. This means that if you enter into a surrogacy arrangement, the UK law does not legally compel either party to follow through with the agreement. This legal stance often leads intended parents to engage in surrogacy arrangements overseas, where the surrogate lives and the initial legal parentage is established.
In the UK, the intended parents of a child born through surrogacy do not automatically become the legal parents at birth. Instead, the surrogate is the legal mother of the child, regardless of any genetic connection between her and the child. This principle is firmly rooted in British family law and is important to bear in mind when planning your surrogacy journey.
The Role of Parental Orders in UK Surrogacy Law
The legal status of intended parents in the UK is established through a parental order. This order is a court process carried out by the Central Family Court, which transfers legal parenthood from the surrogate (and her spouse or civil partner, if applicable) to the intended parents. Obtaining a parental order is a crucial step because it extinguishes any parental rights the surrogate and her spouse may have, legally recognizing the intended parents as the child’s parents.
To apply for a parental order, there are specific legal requirements. At least one of the intended parents must have a genetic link to the child. This means their DNA must have been used to create the embryo. If no gametes from the intended parents were used (for example, if donor eggs and sperm were used), the intended parents must pursue a legal adoption instead of a parental order. The intended parents and the child must be physically present in the UK when applying for the parental order.
The requirement for physical presence in the UK can sometimes create challenges, especially when the child is born overseas. This is a critical consideration for intended parents working with international surrogates, as it impacts how and when the child can be brought to the UK legally.
Biological and Legal Parentage: Differences in UK Family and Immigration Law
One of the complexities in surrogacy cases under UK law is the distinction between family law and immigration law regarding parentage. In UK family law, the mother of the child is always the woman who gives birth, regardless of genetic links. The father is either the surrogate’s husband or, if the surrogate is unmarried, the man who can be proven as the biological father.
However, UK immigration law takes a different approach. It recognizes parents as both biological and legal parents. This means that until a parental order is granted, the surrogate and her spouse or civil partner are considered the child’s legal parents for immigration purposes. Consequently, a child born through surrogacy overseas can effectively have up to four individuals recognized as parents under UK immigration law: the surrogate, her spouse or civil partner, and the two intended parents (biological parents).
This distinction has significant implications for bringing a child born via surrogacy into the UK and securing their immigration status. Understanding these nuances is essential to avoid legal pitfalls and ensure the child’s smooth transition to life in the UK.
British Nationality and Citizenship for Children Born Through Surrogacy
Another important aspect to consider is how British nationality applies to children born through surrogacy, especially those born overseas. British nationality law has specific provisions concerning children born abroad, which can affect whether a child automatically acquires British citizenship at birth or later on.
Children born abroad to a surrogate may automatically acquire British citizenship at birth depending on the nationality of the surrogate and, if applicable, her spouse or civil partner, or the biological father of the child. In many cases, however, the child will not be British at birth but can become British once a parental order is made, provided that at least one of the intended parents is a British citizen at the time the order is granted.
There is also an option to register children born to surrogates as British citizens through either entitlement or discretion. These applications are complex and not always straightforward, often requiring expert legal advice to navigate successfully.
Bringing Children Born via Surrogacy Overseas into the UK
When a child is born overseas through surrogacy, bringing them to the UK involves navigating various immigration rules and procedures. The UK immigration system offers different pathways for these children to enter the country, but choosing the right route depends on the specific circumstances of the surrogacy and the family.
Some of the main options include applying under specific provisions of the UK immigration rules designed for children born through surrogacy. Another option is submitting applications for leave to enter or remain outside of the immigration rules, which are rare and generally reserved for exceptional circumstances.
Because the immigration rules are complex and the options vary case by case, it is highly recommended to seek specialist legal advice to determine the best and often the quickest way to bring children born overseas to the UK.
Challenges and Considerations for Intended Parents
Surrogacy is a journey filled with emotional, legal, and procedural challenges. For intended parents, especially those working with surrogates overseas, understanding the intersection of surrogacy law, family law, immigration law, and nationality law is essential to ensure their child’s welfare and legal status.
Some of the key challenges include the non-enforceability of surrogacy agreements. Since UK law does not enforce surrogacy agreements, intended parents cannot rely on legal contracts alone to secure parentage or custody. Legal parentage at birth presents another challenge as the surrogate is initially the legal mother, which means intended parents must obtain a parental order or adoption to become legal parents. The physical presence requirement creates complications, as the necessity for the intended parents and child to be in the UK when applying for a parental order can complicate travel and immigration logistics. Complex immigration status is also a challenge because until a parental order is granted, the child’s immigration status may be tied to the surrogate and her spouse or civil partner, complicating entry to the UK. Finally, British citizenship acquisition requires careful consideration, as determining when and how the child acquires British citizenship involves understanding genetic links, parental nationality, and the timing of parental orders.
Because of these complexities, specialist legal advice is not just beneficial but often necessary to navigate the surrogacy and immigration process correctly and efficiently.
