Many parents are crossing borders for surrogacy, sometimes due to personal connections internationally but more often to access surrogacy services not available at home.
Destination countries for surrogacy
The USA (surrogacy-friendly states), India, the Ukraine, Georgia and Russia are the main international surrogacy destinations globally. All have legal frameworks which allow the commercial arrangement of surrogacy, and all allow foreign intended parents to engage those services. There are different rules and processes in each country/state, and not all allow surrogacy for all types of parents.
Across the rest of the world, the law on surrogacy varies considerably. Most European countries bar surrogacy altogether. Some countries have laws which allow surrogacy on a restricted basis (for example limiting payments or the professional arrangement of surrogacy, or creating a framework only for parents who live there). Other countries have no law on surrogacy.
The UK allows surrogacy with restrictions, but is not generally a destination country for non-UK intended parents.
Understanding the legal framework for international surrogacy
The law does not join up internationally which makes planning an international surrogacy arrangement like putting a jigsaw together. If you are considering an international surrogacy arrangement, it is always sensible to ask the following questions:
What is the law on surrogacy in the country where your arrangement will take place? How does the law regulate arrangements, and have you thought about safety and ethical issues? Are you committing any offences at home or abroad?
What nationality status will your child have at birth? What nationality status can you apply for? What documentation will you need to cross borders and how long will it take to get?
Will you be recognised as the legal parents of your child? Will you be legal parents both in the destination country and your home country (and, if relevant, any third country in which you are living)?
What processes do you need to follow to secure your parentage? Are there any deadlines?
UK parents going overseas for surrogacy
UK law will treat your surrogate (and if she is married her husband) as your child's legal parents, even if you are named as the parents on a foreign birth certificate or if you have a foreign court order confirming your parentage. To secure your parentage for UK law purposes, you will additionally need to apply for a parental order (or explore alternative solutions if a parental order is not available). There is now an established history of parental orders being granted in international surrogacy cases.
You can also download our free information leaflet for couples considering surrogacy in the USA.
Immigration and nationality is usually dealt with separately. Most parents wish to bring their children home to the UK as quickly as possible after the birth, and in any event will need to enter the UK to deal with the parental order application process. Find out more about travelling home after the birth of a surrogate child abroad.
Other international law issues
UK surrogacy law caters only for parents who have their permanent home in the UK; one or both must be 'domiciled' in the UK. This is not as simple as citizenship or residence and there can be issues if you are British but living abroad, or if you are living in the UK but not from the UK originally. There can also be complex issues if you are non-UK parents who want to work with a UK surrogate (perhaps a friend or family member). In these cases it is important to confirm whether you will qualify for a parental order, and if not what alternative legal solutions may be available. Find out more about domicile and jurisdiction.
How we can help
We have helped hundreds of families created through surrogacy, and represented the parents in virtually all the key court decisions which have made the law in this field since the very first international surrogacy case in 2008. Our published cases include AB v DE (2013) (the first Russian surrogacy case), J v G (2013) (the highest payment ever authorised, for Californian surrogacy), Re A and B (2013) (a case dealing with whether a foreign couple living in the UK was UK domiciled), Re D and L (surrogacy) (2012) (the first ever decision to make a parental order without the surrogate's consent, after an Indian surrogate mother disappeared), Re IJ (2011) (a Ukrainian case in which the dangers of international surrogacy were highlighted), Re L (2010) (the case which established that welfare took priority over the rule against payments, something which has created a precedent for every subsequent international surrogacy case) and Re X and Y (2008) (the very first international surrogacy case). Find out more about our Surrogacy Law Services or contact us for help.
In 2013, we also launched Brilliant Beginnings, a UK based non-profit making surrogacy and egg donation agency. Our commitment is to support parents with the practicalities of building families through international surrogacy in ways which are safe, legal, ethical and responsible. Find out more about how Brilliant Beginnings helps intended parents.
Judge awards parenthood to gay dads after Indian surrogate 'disappears' - our blog, and the Telegraph and Daily Mail
Surrogacy: creating a sensible national and international legal framework - International Family Law, September 2012
The Indian surrogacy industry - and why we need to reform UK surrogacy law - Bionews, June 2012
International surrogacy law conference in Las Vegas - Family Law (journal) article, February 2012
Crossing borders for surrogacy: the problems for families and policymakers - Bionews article, May 2011
Fertility tourism: what you need to know - Infertility Network UK magazine, Winter 2010
The chosen middle ground: England, surrogacy law and the international arena - International Family Law (journal) article, November 2009
Crossing the Line: the legal and ethical problems of foreign surrogacy - Reproductive Biomedicine, August 2009
Re X and Y (foreign surrogacy): a trek through a thorn forest (with Lucy Theis QC, now Mrs Justice Theis) - Family Law (journal) article, March 2009