Nationality and immigration pitfalls in international surrogacy

Entering into an international surrogacy arrangement is becoming an increasingly popular option for prospective parent(s). This growing popularity is spurred on by the wider availability of global surrogacy services, high profile celebrity surrogate babies and increasing frustration with adoption services both domestic and foreign. As more children are born as the result of a surrogacy arrangement, family, immigration and nationality laws in the UK and across the globe have struggled to keep up with this developing area of law.

It is an indication of how popular this option has become that the Foreign & Commonwealth Office (FCO) has recently issued updated guidance on the immigration issues and procedures parents need to consider and follow to bring their child back to the UK. While the law in this area has not been updated, the new FCO guidance provides a more thorough and accessible explanation of what can be a complex area for new parents to navigate.

This guidance seeks to present a comprehensible path through nationality laws written long before international surrogacy became the popular choice it is today.

Faced with numerous legal issues, both in the country where the surrogacy is to take place, and the UK, the nationality and immigration position of the child can be forgotten or even taken for granted. However, as the newly issued guidance makes very clear, the immigration implications of your surrogacy arrangement ought to be a first consideration.

In particular, prospective commissioning parents need to be aware of and take action in respect of the following nationality and immigration issues:

• The child may not be automatically British. The surrogate mother will be considered the legal mother for UK nationality law purposes so the commissioning parent cannot automatically pass on her citizenship to their child. If the surrogate mother is married, her husband will be considered the father for nationality law purposes and in these circumstances.
• In certain countries, the child will not be considered a national of the country they are born in or acquire the citizenship of the surrogate mother. In these circumstances, they will not be eligible for a passport or other travel document from the country of birth. This means that the child’s entitlement to British nationality needs to be resolved before they can leave the country and return with the commissioning parent(s) to the UK.
• If the child is automatically British (ie. because the surrogate mother is unmarried and DNA evidence shows the commissioning father is the biological father of the child), the British passport application will need to be accompanied by more documentation than usual, and a signature from the surrogate mother needs to be included on the application form. These applications can take several weeks to process so the parents may need to plan to spend a significant period of time in the country where the surrogacy arrangement is taking place.
• If the child is not automatically British, an application must be made for discretionary registration of the child as a British Citizen before a passport application can be made. While careful planning and early advice can ensure that the Secretary of State is likely to exercise her discretion and register the child as British, it is important to emphasise that this application is discretionary in nature. Also, this extra step naturally adds a further delay to the overall processing time which can become very onerous if the family is unable to bring the child to the UK during this time.
• Where the child is the subject of a Parental Order in the UK, if they are not automatically British, they will automatically become so on the date of the Parental Order.
• If the commissioning parent(s) are unable to pass their citizenship on, for example because they are not British themselves but resident in the UK, they will need to look at their options under the Immigration Rules and make an application for entry clearance for the child. There is no specific reference to surrogacy arrangements in the Immigration Rules, so careful consideration needs to be given to what the correct approach is and which application should be made. It is crucial that these matters are considered at an early stage, as if the child is not entitled to a British passport or a travel document of the country they are born in, they could be left stateless and unable to travel.
• If the commissioning parents (or parent) need to spend a significant time in the country where the surrogacy arrangement is taking place, they will need to review their own immigration status in that country to ensure they remain lawfully present and can continue to care for their child while these issues are being resolved.

As helpful as the new guidance is, it can only cover a limited number of scenarios and it doesn’t provide a clear route to the UK in more complex scenarios. Further, unless and until UK immigration requirements and nationality provisions are updated to reflect the special circumstances of surrogacy, there will always be an additional element of complexity in these scenarios as we try to fit children into a framework which was written without them in mind.

This guidance is a positive step for prospective commissioning parents, but it is not a substitute for seeking early, expert legal advice on the nationality and immigration considerations raised by a surrogacy arrangement and we would always advise those contemplating surrogacy to seek this advice at the earliest opportunity to help plan the most efficient and least burdensome resolution of these issues. Planning really is the key.

A copy of the FCO guidance “Surrogacy Overseas” can be found here.