International Surrogacy: Immigration FAQs

While intended parents may prefer to through the surrogacy process in the UK, restrictive surrogacy laws mean that many enter into surrogacy arrangements abroad where commercial surrogacy is lawful.

It is important to be aware that a child born through surrogacy overseas is not necessarily British and may need a visa or to apply for citizenship before they can come to the UK to live with their intended parents.

This is a short guide to immigration considerations designed to help families exploring international surrogacy. Every family’s circumstances are different, and you should seek tailored family and immigration advice before entering into a surrogacy arrangement.

Who are the legal parents?

The first important step is looking at who the legal parents are at birth under UK law.

  • Legal mother: The surrogate mother who gives birth to the child will always be the legal mother in UK law.
  • Legal father: This is slightly more complicated.
  1. If the surrogate mother is married, her spouse will be the child’s other legal parent (unless they did not consent to the procedure).
  2. If the surrogate mother is not married, then the intended father will be the child’s legal father if  there is a genetic connection.
  3. If the surrogate is not married and the intended father is not the child’s genetic father, then the child has no legal father from a UK nationality law point of view.

In summary, the legal mother of the child will always be the surrogate and the legal father of the child will depend on the marital status of the surrogate and the biological relationship of the intended parents to the child.

Is the child British?

If one of the legal parents is British otherwise than by descent, then a child born outside the UK will be automatically British. In these circumstances, the intended parents would apply for a first British passport for the child.

If the child is not automatically British, in some circumstances it may be possible to register the child as a British citizen.

Even where a child is British or entitled to register as British, it is worth considering whether the child can obtain another passport by looking at the nationality of the surrogate and the country of birth.

Does the child need a visa?

Where British citizenship is not an option, families will need to apply for entry clearance for the child to come to the UK. This will either be:

  • A 12-month entry clearance visa Outside the Immigration Rules, granted at the discretion of the Secretary of State
  • Indefinite Leave to Enter, in line with the parents’ immigration permission
  • Limited Leave to Enter, in line with the parents’ immigration permission

What is a Parental Order?

As explained above, the intended parents of a child born through surrogacy will not always be the same as the child’s parents as defined in UK law. Clearly, this is not the aim of a surrogacy arrangement.

The solution to this is a Parental Order, which transfers parental responsibility and legal parenthood to the child’s intended parents. Applications for parental orders must be made inside the UK and between 6 weeks – 6 months of the child’s birth and with the consent of the surrogate.

It is important to seek specialist advice from a family lawyer about this process and your specific circumstances. We can work closely with your family lawyer, or recommend a family lawyer if you do not already have one.

Questions?

Immigration and citizenship cases involving international surrogacy are complex. For advice and assistance, please contact us to arrange a consultation to discuss your circumstances in detail.