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Permission to Visit - Goldilocks and the Three Bank Statements
Robert Houchill
Growing your family through international surrogacy comprises many legal and logistical aspects. Managing these, at what can be a very busy and emotional time, can be extremely challenging.
From an immigration perspective, planning ahead can save parents a lot of anxiety and money. For this reason, we’ve set out below a few key issues to bear in mind before entering into international surrogacy arrangements – and explained why these are so important.
(For the purposes of this blog, we are assuming that the surrogate and any spouse of theirs are not British and that a child is being born outside the UK).
- Entitlement to British Citizenship at birth?
The person who gives birth to the child, the surrogate, will be considered to be the ‘mother’ under UK nationality law. Therefore, regardless of whether an intended mother is genetically related to the child, they will not automatically be able to pass their British Citizenship on to a child born abroad to a surrogate.
Where there is a British intended father, the question then arises whether he can pass on his British nationality to the baby. If the intended father has British Citizenship which can be passed on to a child born abroad, a genetic link to the child, and the surrogate is not married, then the child may be British. If the surrogate is married, it won’t be possible for an intended father to pass citizenship on to the child.
- Parents’ visa status in country of birth
What visa (if any) will you, as the intended parent(s), need in order to spend time in the country of birth? It is important to ensure you have the right to remain in that country for the required amount of time – which could be anything from a few weeks to around six months, depending on what application, if any, needs to be submitted to document your child’s nationality and/or immigration status before returning to the UK.
- Nationality of the surrogate and country of birth
You should also take advice from a local immigration lawyer about the baby’s entitlement to nationality of the country they will be born in. This is especially important to consider in cases where the surrogate is married and/or the baby will not be born British.
If your child is able to obtain the nationality and passport of the country they are born in, it is likely this will make returning to the UK a speedier and more straightforward process.
- Keeping in contact with the surrogate
It is also incredibly important to maintain communication with the surrogate following the baby’s birth, as their involvement will likely be required for any British passport or registration application for the baby (if needed). Once in the UK, the intended parent(s) will likely need to commence Parental Order proceedings to have themselves legally recognised in the UK as the child’s parent(s). Upon the making of the Parental Order, the baby will automatically become a British citizen (provided at least one of the intended parents is also British). The surrogate (and partner, if married) will need to provide written consent to the Parental Order proceedings.
While these are important tips to help make your international surrogacy journey smoother, we would advise that you take legal advice tailored to your specific circumstances at the earliest opportunity, to minimise the risk of any complications arising further down the line.
further information
Should you require legal advice about international surrogacy arrangements – be it immigration, family or employment advice – you can find a full list of our surrogacy experts here.
about the author
Josephine is an associate in the private client immigration team, where she advises high net worth individuals on a range of UK immigration matters. She joined the team in November 2019, after completing her training contract at Kingsley Napley.
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