What if I am named on the birth certificate abroad?
International surrogacy is becoming more frequent. I have recently acted for clients who have entered into surrogacy arrangements in Canada, the USA, Ukraine, Georgia, Northern Cyprus and Nigeria to name but a few, and who wish to bring their baby back to live in the UK. In many countries, surrogacy arrangements are regulated, and the intended parents or parent may be seen as the legal parents in the country where the baby was born. For example, in many states in the US, a pre-birth order is obtained, and this will name the intended parents and prior to the birth it is determined (under local law) that the surrogate shall have no legal rights nor is recognised as a parent under the law of the country where she gives birth to the baby. A birth certificate in many US states or Canadian provinces following a pre or post birth order after a surrogacy arrangement may name the intended parents as parents, and the surrogate’s legal connection may be ended in that jurisdiction long before the baby is brought back to the UK. Is it necessary then to have a parental order in the UK? Can you just rely on the foreign birth certificate?
Is a parental order required in the UK after an overseas surrogacy?
The answer is yes. The law in England and Wales does not recognise overseas surrogacy arrangements or foreign orders that remove the surrogate’s legal parentage. In English law, the woman who gave birth to the baby is always considered the legal mother, unless that position is brought to an end by an English court order. A foreign court order shall not be recognised, as a matter of English public policy. You may think that this will not cause any practical problems. If you have a US birth certificate that you can show to the English authorities with your names on, won’t that be accepted? If the surrogate was not married and the baby has a biological link with a male intended parent, that person may be seen in English law from the outset as the baby’s father. Do you still need a parental order then?
What might happen if I do not get a parental order?
Regardless of who is on the birth certificate, not obtaining a parental order will cause a problem in English law because the surrogate is still seen as the legal mother regardless. It may cause a problem when you apply for the baby’s first British passport (although this is often not the case depending on the circumstances of birth and who is considered the baby’s legal father). It might cause an issue many years down the line as English law would not recognise link between a child and a woman who did not give birth to that child, and the child may not be entitled to an inheritance passing without a will. It may cause an issue every time you travel overseas with the child or need to make a medical or educational decision because the surrogate still has parental responsibility and should give consent. You might get away with it on a practical level for a while, but it stores up a whole host of potential legal problems.
Surrogate’s consent
In order that the surrogate’s legal parentage can be ended in English law, a parental order must be applied for within 6 months of the baby’s birth (although the court has extended this deadline in some circumstances). It is important that when entering into a surrogacy abroad, that you also obtain English legal advice from a lawyer specialising in international surrogacy. Practically speaking, the surrogate should be warned that her consent (and also that of her husband’s if she is married) shall be required and must be notarised, and that consent cannot be given before the baby is 6 weeks’ old. Furthermore, her consent will need to be affirmed at various points during the process, when the application is issued, and several weeks or months later when notification of the hearing is obtained. Often, parents going through international surrogacy who have not taken English legal advice about the process consider it “job done” once the surrogate has handed over the baby and necessary formalities have been completed in the country the baby was born in. That is not the case. You should also note that arrangements where the surrogate wishes to remain anonymous causes an issue in the English court process, as it may not be possible to ascertain her unconditional consent. So if you have arranged a surrogacy through an agency where the surrogate wishes to remain anonymous, you will need to be able to get in touch with her. A welfare report is also carried out by a parental order reporter (who will be an officer of CAFCASS) and they will often wish to speak with the surrogate by video call or at least by email.
We’re not British citizens – can we get a parental order?
At least one applicant for a parental order must be domiciled in England and Wales. Domicile reflects your long term intentions and is not the same as nationality and it is not the same as habitual residence. For example, if you were born in the UK you may have a UK domicile of birth, and even though you have lived and worked abroad for many years, you may not have lost your UK domicile if you intend to return one day. Conversely, if you are a foreign national but have now made your home in the UK, you may have a domicile of choice here. One or both applicants may be foreign nationals or living outside the UK but still be able to apply for a parental order – we can advise in your specific circumstances.
We’re stuck abroad – can we apply for a parental order?
The answer is yes. You do not need to be present in England and Wales to apply for a parental order, as long as the other requirements are met – that is, that at least one of you is domiciled here. The baby must have its home with you – but this does not need to be a fixed location in the UK, or even with both of you if you are a couple. For example, one intended parent may be stuck in the country the baby was born in due to an immigration issue, and the other returned home because they have to return to work, but you can still meet the requirements for a parental order in those circumstances because “home” is interpreted quite flexibly.
Advice from Rayden Solicitors
We are able to advise at any stage of the international surrogacy process. We cannot get involved in negotiating your surrogacy contract (this is not permitted in English law), but we can explain the legal process to become legal parents in the UK. If you are going through or considering an international surrogacy process and need advice, please contact Rosalind.
