International surrogacy advice getting it right

7th August 2018 Family Law

As part of our celebration of Surrogacy Week, we are looking at some of the key issues facing intended parents in the UK. For intended parents looking to begin their surrogacy journey, one of the first questions they will need to answer is whether they are planning to enter into a surrogacy arrangement in the UK or overseas. There are pro's and con's to both options, which are very heavily dependent upon the intended parents' exact circumstances and the particular overseas country involved.

Why some intended parents opt to go abroad

Often some element of fertility treatment will be needed to build a family through surrogacy. This could be the artificial insemination of the surrogate with the intended father's sperm, the implantation of an embryo following IVF and/or provision of donor eggs or sperm. Treatment can be expensive in the UK and cost can be a factor encouraging people to undertake fertility treatment of all types abroad, not just surrogacy.

Coupled with this, attitudes towards surrogacy and its regulation in law vary tremendously throughout the world, ranging from outright bans to tightly regulated altruistic surrogacy to regulated commercial surrogacy to no regulation at all. Some countries, while allowing surrogacy, restrict it to its own residents and/or exclude certain groups such as unmarried or same sex couples. The different regimes in force greatly affect the supply and ease of making contact with a potential surrogate.

When combined with cost factors, all this means that UK intended parents considering surrogacy may find that an overseas country is a better fit for them.

Why can overseas surrogacy be problematic?

Regardless of the regime in force in the surrogate's home country or the county of the child's birth, if intended parents plan to settle in the UK and seek legal recognition of their family via a parental order, UK law will apply. This will be highly relevant when it comes to actually bringing your child home and obtaining either a British passport for them or another form of entry clearance such as a visa.

There are very different immigration requirements depending on whether the intended father, intended mother or both have a genetic link with the child and whether the surrogate is married. Some situations (e.g. where the child has no genetic connection with either of the intended parents) are simply not recognised by UK law and there is no possibility of a parental order or an entry visa being obtained, even if such arrangements are lawful overseas.

As well as ensuring that their plans will comply with UK family law and UK immigration requirements, intended parents have the added responsibility of making certain that everything they, their surrogate and their fertility clinic are doing is lawful in the relevant overseas country. Breaches of the law could mean that parenthood is not recognised in that country and exit clearance is therefore denied. There could even be criminal penalties for getting things wrong. It is also important to prepare for an extended stay overseas, in terms of living expenses, flexibility over time and (crucially) ensuring that intended parents have the proper permission to stay long enough in the country overseas.

I have personally been consulted in a very sad case where intended parents, unable to obtain UK entry clearance for their child, were forced to leave the child behind as their permission to remain in the country abroad had expired. There was literally nothing that could be done.

Things can change fast. Some countries (e.g. India, Thailand) have in the last decade entirely suspended surrogacy involving foreigners. Previously surrogacy-friendly states can become no-go seemingly overnight, even criminalising surrogacy within a fairly short timescale.

How you can get things right

Research, research, research. Is the clinic you are using reputable? Will they be able to provide appropriate evidence to prove the genetic connection between the child and the intended parents? Is the agency putting you in touch with a surrogate reputable and acting in good faith? There are many more questions besides. The key is to make sure that everything is in place before conception so that it is not too late to put things right if difficulties arise.

Taking good quality legal advice in both the UK and overseas is of utmost importance, covering both immigration requirements and family law. I am happy to say that I have been involved in a range of overseas surrogacy arrangements, and with good planning and good advice the outcome can be life-changingly positive. It isn't easy and it can take a long time but it can be done well.

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Cara Nuttall is a Partner located in Manchester Londonin our Family department

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