International surrogacy: Non British couples living in the UK, and British couples living abroad
International surrogacy: the domicile requirement
One of the conditions for obtaining a parental order following surrogacy in the UK is that one or both of the intended parents is 'domiciled' in a part of the United Kingdom, Channel Islands or Isle of Man. The court has no jurisdiction to make a parental order if you cannot satisfy the domicile criteria. Checking whether you meet the domicile criteria is an issue which can be important for non-British couples living in the UK, and for British couples living abroad.
Domicile is an often misunderstood legal concept which relates, not to where you are living or your citizenship status, but to a much wider assessment of your lifelong roots and national affiliations. There is no simple checklist you can apply to determine where you are domiciled, but rather the court will look at all the facts and can take into account anything it considers relevant. The basic law (from hundreds of years of cases) provides that you acquire a domicile of origin at birth from your parents, and this is only displaced (by a new domicile of choice) if you move to another country during your lifetime with a permanent intention to stay. Changing your domicile is not something which can be done lightly, and doesn't just relate to where you are living, but to how you conduct your life and your long term intentions. Your position depends very much on the facts of your own situation, so if you are in any doubt as to your domicile status and whether you will qualify for a parental order please contact us for legal advice. We have worked on some of the leading cases to determine domicile questions in the context of surrogacy situations.
If you are living abroad, you may also need advice from a foreign lawyer as to how the law applies in your home country. We are accustomed to working with lawyers around the world who specialise in this area.
International surrogacy: what happens if neither of us is domiciled in the UK?
If neither intended parent is domiciled in a part of the UK, the court will not have the power to grant a parental order. This means that it will be difficult for you to secure your status as your surrogate-born child’s parents and to take your child out of the UK.
In the case of Re G (surrogacy: foreign domicile) 2007, a Turkish couple travelled to the UK and conceived a child with a British surrogate mother. The court was unable to grant a parental order because neither intended parent was domiciled in a part of the UK. It took nine months of litigation in the High Court to find an alternative solution using international adoption law (which entailed a full local authority assessment of the intended parents, and expert evidence confirming that the couple would be permitted to adopt in Turkey).
Although there may be alternative solutions, careful planning is key. In the Re G case, the court warned that if any other intended parents followed this path, coming to the UK for surrogacy as foreign nationals, the court would impose on them (in addition to their own legal costs) the state’s costs for resolving the position.
International surrogacy: how can we help?
Please contact us if you would like our help with:
- advising you on your domicile status and whether you will be able to apply for a parental order,
- advising you on how the law applies in relation to international surrogacy,
- representing you in an application for a parental (or alternative) order (including situations where you are not domiciled in a part of the UK) and
- liaising with foreign lawyers.
