International Surrogacy – what is it, and what are the legal implications of having a baby through surrogacy overseas?

Recent data from CAFCASS (the Child and Family Court Advisory and Support Service) shows that, since 2014, more than half of UK parents, seeking parenthood through surrogacy, have gone abroad to find a surrogate, with the US being the most popular international surrogacy destination.

What is surrogacy?

Surrogacy is when a woman carries and gives birth to a child for someone else. The intended parents may be a couple who can’t carry a pregnancy, a single parent, or may simply be choosing to opt into surrogacy instead of the traditional method of becoming parents. It might involve the artificial insemination of a surrogate with the intended father's sperm, known as ‘traditional surrogacy’. 

More commonly, it involves embryos created in a fertility clinic with the intended parents' eggs and sperm (or donor sperm or eggs from one of the parents, and the eggs or sperm of the other parent), which are transferred to a surrogate who carries a child that isn’t biologically hers. This is known as ‘gestational surrogacy’.

International surrogacy arrangements are where conception and/or birth takes place overseas. 

Why might intended parents look to international surrogacy?

Under English law, the surrogate will always be the child’s legal mother at the time of birth (even if the surrogate is not biologically related to the child) and if the surrogate is married or in a civil partnership at the time of conception, then her spouse or partner will be the other legal parent (although there are exceptions). 

The intended parent(s) must therefore apply for a parental order 6 weeks after the child is born in order to be recognised as the child’s legal parents. The court must be satisfied that the surrogate has freely, and with full understanding of what is involved, agreed to the making of the parental order. 

There are many reasons why families may want to explore surrogacy overseas, including better access to professional services for finding a surrogate and more legal certainty. Where intended parent(s) living in the United Kingdom are looking to undertake surrogacy in another country, they will need to think about:

• is surrogacy legal in that country? If so, who can enter into surrogacy arrangements there, and what conditions need to be fulfilled? 
• are surrogacy arrangements enforceable in that country? What are the legal implications of entering into an agreement in that country?
• who will be the legal parents of a child born through surrogacy at birth? 
• what are the costs involved in surrogacy in that country? 
• what nationality will the child have at birth? 
• what travel documents will be needed to return to the United Kingdom? 
• which further steps are necessary to be recognised as legal parents in the United Kingdom? 

Legal issues surrounding international surrogacy

Creating your family via non-traditional methods can cause a range of complex legal issues. It's essential to take specialist legal advice at an early stage in your journey, to enable you to make fully informed choices. 

You should therefore get advice from a specialist lawyer in the country where the surrogacy arrangement is taking place, to provide you with detailed information about the process and any requirements there.

Alongside this, you should get specialist advice from a lawyer in England and Wales to ensure that you can take a joined-up approach. Where intended parent(s) living here undertake surrogacy in another country, they may be subject to two sets of laws which they must comply with: the laws on surrogacy in England and Wales, and those in the country in which the surrogacy takes place. Where conception and birth take place in different countries, different laws may apply in each of those places.

Not only is it recommended that you obtain specialist legal advice regarding the surrogacy processes, but also about immigration law to ensure that you can bring the child home once the child has been born. This should also include visa requirements for entry into the UK, whether/when the child can be registered as a UK citizen and obtain a passport. 

You'll also need to consider issues such as who will be your child's legal parents under English Law, the parental order process (which transfers parentage from your surrogate to intended parents) and making sure that your arrangement is set up in the best possible way for you, your surrogate, and your baby.

Our Family team has extensive experience helping parents who are building their families through surrogacy in the UK, or overseas. Our legal experts can support you through the process, providing you with specialist legal advice. We'll work with you to explore your options and give you the peace of mind to focus on enjoying precious family moments.