International surrogacy: understanding legal parenthood in the UK
Growing your family through surrogacy, whether in the UK or overseas, can be an exciting and deeply personal journey. However, it is important to consider carefully the immigration and family law implications of entering into a surrogacy arrangement overseas. A child’s immigration status following international surrogacy can vary depending on several factors, including the identity and nationality of the child’s parents, the place and date of the child’s birth, and the nature, location, and timing of the surrogacy. The rules are complex, and early planning ensures intended parents are fully informed about the child’s status and the steps required to bring them to the UK lawfully. Here we set out how immigration status is determined in the UK for children born through international surrogacy and the associated family law considerations.
How do you identify the legal parents of a surrogate child?
It’s important to note that, for nationality purposes, the UK applies a strict and binary definition of legal parenthood. This legal definition may not always align with the practical or intended parental arrangements in place.
Under section 50(9) of the British Nationality Act 1981, the legal mother of a child is defined as the individual who gives birth to that child. This means that in surrogacy arrangements, the surrogate will always be treated as the child’s legal mother under English law. British Nationality law does not allow for any other person to be recognised as the child’s legal mother.
The identification of a child’s legal father depends on the date the child was conceived and/or born. According to Home Office guidance Nationality policy: surrogacy, where a child was born to a surrogate: Before 1 July 2006: the legal father is the surrogate’s husband or male civil partner at the time of birth if he consented to the fertility treatment. Otherwise, the child has no legal father for nationality purposes.
On or after 1 July 2006: – legal parenthood at birth does not necessarily reflect the intentions of the parties. Depending on the circumstances, the legal father may be:
- The surrogate’s male spouse at birth;
- The man who underwent fertility treatment jointly with the surrogate at a licensed clinic, even if his sperm was not used; or
- Where neither applies, the biological father is proven through a qualifying birth certificate issued within 12 months of birth or other compelling evidence, such as DNA evidence a court order. For children born on or after 10 September 2015, this must be the biological father.
For surrogate born children conceived on or after 6 April 2009, a person who is not the surrogate but is treated as a parent under sections 42 or 43 of the Human Fertilisation and Embryology Act 2008 may also be regarded as the legal parent for nationality purposes. This can include a recognised second female parent.
Nationality law allows for the possibility that a child may not have a legal father.
When is British citizenship automatic for a surrogate born child?
A surrogate born child may acquire British citizenship automatically at birth if:
- They are born in the UK, and at least one legal parent is a British citizen; or
- They are born outside of the UK, and at least one legal parent is a British citizen otherwise than by descent.
British by descent: This applies to people who automatically acquire British citizenship through a parent but are born outside the UK. They can usually only pass on British citizenship to children if the child is born in the UK, not abroad.
British otherwise than by descent: This refers to people who acquire British citizenship in ways that are not limited by descent, such as being born in the UK to at least one British parent, naturalisation, or registration. They can generally pass on British citizenship to children born anywhere in the world.
When do you need to register a surrogate born child as British?
Home Office guidance confirms that in most surrogacy cases, intended parents are not the child’s legal parents at birth and cannot automatically pass on British citizenship, but discretion may be exercised in such cases.
If citizenship is not automatic, intended parents may apply to register their child either shortly after birth or later. Under section 3(1) of the British Nationality Act 1981, the Secretary of State has discretion to register a child as British before the age of 18, regardless of where or when they were born, provided the child has a strong connection to the UK. Applicants aged 10 or over must meet the good character requirement.
What if the child is not British?
Where a surrogate born child is not British and cannot be registered as such, and is outside the UK, the intended parents may apply for entry clearance to enable the child to enter the UK – this is provided at least one intended parent has a genetic connection to the child (evidence of identity and that relationship will be required).
Once the child is in the UK living with the intended parents, an application for a Parental Order may be made. Under section 54 of the Human Fertilisation and Embryology Act 2008, a Parental Order confers legal parenthood on the intended parents and extinguishes the parental rights held by the surrogate. The surrogate may only provide valid consent six weeks after birth, and the application must be made within six months. Once granted, a Parental Order may allow the child to be treated as British where one intended parent is a British citizen.
Are there alternative immigration options?
If no British nationality route is eligible to the child, it may be possible to apply for entry clearance to the UK under an alternative immigration category. These applications require careful consideration and planning, please contact us for specialist guidance and support.
How we can support you
International surrogacy can be a rewarding route to parenthood, but it brings with it a series of legal and immigration considerations that require early, careful planning. By understanding how legal parenthood and citizenship are assessed, intended parents can make informed decisions and smooth the path to bringing their child home.
At Forsters, our Immigration and Family teams work closely together to support families through every stage of the process. For tailored international surrogacy advice, please contact Tracy Evlogidis, Head of Immigration or Sarah Williams, Head of Children.
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