Surrogacy and assisted reproduction: common questions

September 13, 2016

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We regularly advise parents who are seeking parental orders to deal with surrogacy or assisted reproduction. In this blog Family Law in Partnership consultant Pamela Collis answers some of the questions which clients commonly raise on this topic:

  1. My partner and I are both UK citizens living in London. We are thinking of using a surrogate mother based abroad. Can we do this? Yes you can but complex rules apply if the baby is born outside the UK. You need to carefully select the country in which the surrogacy is to take place and fully understand the legal implications of your choice of jurisdiction. Some countries (eg. certain US states and the Ukraine) recognise commercial surrogacy (where a fee is paid to the surrogate mother). Some countries recognise surrogacy but not commercial surrogacy (eg. the UK and Australia). Some countries, like Portugal and Italy, don’t recognise surrogacy at all. The status of surrogacy within your chosen country will have a significant impact on the legal challenges that you may face.
  2. If our baby is born abroad to a surrogate mother, what legal implications might this have for our baby? You will need to consider both the family law and the immigration law issues. Does the baby automatically become a citizen of the country in which it is born (as is the case in the US)? Will the baby need a visa to allow it to come back with you to the UK? In some cases the baby is effectively stateless if it cannot take on the citizenship of the country in which it is born and if its parents are citizens of a country which does not recognise surrogacy.
  3. Do we automatically become the legal parents of the baby once it is born? Not necessarily. In some countries the intended parents become the legal parents as soon as the baby is born. Legal orders may be made in that country in favour of the intended parents straightaway. These orders are unlikely to be valid in the UK. Therefore, it is important that you make an application to become the legal parents of the child under UK law too by applying for a parental order or adoption under UK law (see below). There is a time limit of six months from the date of the baby’s birth after which the UK court will not generally issue a parental order. Thereafter the only option would be to adopt the child. While waiting for the parental order to be processed, the child will require a visa in order to enter the UK.
  4. What happens if our marriage breaks down and we don’t have a parental order and we haven’t adopted the baby under UK law? First and foremost you should ensure that the surrogate mother has waived her rights to the baby. If one or both of you are the child’s biological parent, you can apply for a parental order within six months of the baby’s birth. This will give you both equal rights in relation to the baby. If more than six months have elapsed since the birth of the baby, or if neither of you have a biological connection to the child, save in exceptional circumstances, you will need to apply to adopt the baby. This will require the involvement of a registered adoption agency. There may also be significant immigration issues for the baby.
  5. What is a parental order? Under UK law, a parental order transfers the rights and obligations of parentage to the intended parents, providing certain conditions are met. Applications for a parental order must generally be made to the court within six months of the birth of the child. To obtain a parental order, at least one of the couple making the application must be genetically related to the baby i.e. be the egg or sperm provider. Couples must be husband and wife, civil partners or two persons who are living as partners. A parental order reassigns parenthood, extinguishing the parental status of the surrogate parents, and confers full parental status and parental responsibility on both intended parents. If the child is born abroad, the intended parents can apply for a parental order only if they are living (or domiciled) in the UK.
  6. Why would I use adoption rather than a parental order? If you cannot apply for a parental order because neither of you are genetically related to the child (donor egg and donor sperm or donor embryos were used) or if more than six months have elapsed since the birth of the child, then (save in exceptional circumstances) adoption of the child is the only available option. This means that a registered adoption agency must be involved in the surrogacy process.

If you would like to find out more about the legal issues concerning surrogacy and assisted reproduction and advice specific to your particular case, please contact Family Law in Partnership consultant Pamela Collis on T: 020 7420 5000 or by email on E: pc@flip.co.uk