Surrogacy abroad: your legal checklist

Surrogacy arrangements are becoming ever more popular.

Although official statistics remain hard to come by, recent research suggests that people from the UK are statistically the most likely of our European counterparts to enter into commercial surrogacy arrangements abroad.

The legal position varies widely from country to country and there is little consistency across different legal jurisdictions.

In some countries such as Germany, Portugal and France surrogacy is prohibited completely. In others (the UK amongst them) ‘altruistic surrogacy’ is permitted but payment for commercial surrogacy is not.

The USA and India remain popular destinations where commercial surrogacy is allowed, though countries such as Canada, Nepal, Russia and Mexico are also starting to emerge as popular alternatives.

There are many reasons why hopeful parents choose to go overseas. In some cases, parents are unable to find an altruistic surrogate who is willing to carry their child for them in the UK.

In others, parents may feel that a voluntary arrangement would be unsuitable or that an international arrangement could produce a quicker or more secure outcome.

Awareness about international surrogacy is also growing and medical tourism is perceived to be more accessible than it once was.

It is essential however that people obtain independent legal advice, both in this country and overseas, before they enter into a surrogacy arrangement abroad.

Parents should take steps to find out how surrogacy is regulated in the destination country they plan to travel to. There is a lack of international regulation and different countries adopt different approaches, meaning careful research should be undertaken from the outset. Enquiries should also be made to make sure that a reputable clinic is used.

It is important to be wary of unethical or unregulated clinics purporting to sell surrogacy solutions, and don’t rush into things without being satisfied that surrogacy services are safe and well run.

Although many parents have successfully built families through international surrogacy arrangements, the process can be complicated. The UK Government have highlighted some of the common pitfalls that parents need to be aware of in their report ‘Surrogacy Overseas’.

In particular, the process for returning a child to the UK can take longer than parents expect and in some cases parents should be prepared to stay overseas for months after their child is born.

Parents should make sure they understand what nationality their child will be at birth, what steps they need to take to obtain a passport for their child and whose details need to be entered on the passport application form.

In some circumstances it may be necessary to apply for a visa to obtain the necessary permissions for a child to enter the UK.

After returning to the UK, a court application for a parental order is also needed to transfer legal rights from the surrogate to the intended parents. This provides a means for the intended parents to obtain legal parenthood and parental responsibility.

The application has to be made within 6 months from a child’s birth and complications can arise if this window is missed.

As part of the application the parents will need to demonstrate that the foreign surrogate consents to the parental order being made. The court also has to approve payments which are made to the surrogate.