As a couple who have used a surrogate in the USA, we have both been placed on the birth certificate in the USA and we are now returning to the UK. What more do we need to do?

The law in the UK in relation to Surrogacy Arrangements is incredibly strict

 which is why many British couples are attracted to going abroad, where in some countries, a much more liberal approach is taken.  For example, some countries will allow intended parents to be named on the birth certificate as the parents immediately or acquire parental status immediately, such as the USA.

However, whilst the above is immensely attractive, if the intended parents are domiciled (residing on a permanent basis) in the UK, then English Law will apply irrespective of the international position.  It is important to note that English Law will in fact take precedence over the foreign law.  This could result in one or both intended parents having no status under English Law as a parent.  It is for this reason that it is important to obtain legal advice specific to your circumstances prior to entering into any surrogacy arrangement both in the USA and in England to ensure that the outcome you wish for, to both be recognised as the legal parents of the child, can be achieved. The British Surrogacy Centre, its American lawyers and A City Law Firm LLP will work together to ensure the best possible outcome.

In order to obtain parental status in England following a surrogacy arrangement it will be necessary to apply to the Courts for a Parental Order.  On the making of a Parental Order a new UK birth certificate is issued naming you the intended parents as the legal parents of the child and therefore conferring all associated rights and responsibilities in respect of the child to you here in the UK.  Irrespective of what the law says in the country in which the child is born, the surrogate mother will be the legal mother until the Parental Order is granted and extinguishes her rights.

Who can apply for a Parental Order

The law has recently changed, and from 6 April 2010 unmarried couples can now also apply for a Parental Order.  This extends further to couples who are in a same sex relationship whether in a civil partnership or co-habiting.

The Application and criteria for applying for a Parental Order

As mentioned above, the application for a Parental Order is regulated by very strict conditions.  Therefore in order to apply for a Parental Order the following criteria must be met:

The Applicants (Intended Parents):

1.         Must be at least 18 years old.

2.         Must be married, civil partners or co-habiting in an enduring relationship.  This includes same sex couples.

3.         At least one of the Intended Parents must be the biological parent.

4.         At the time of the application and the time the order is made, either Intended Parent (or both) are domiciled in a part of the UK (England and Wales, Scotland or Northern Ireland) or the Channel Islands or the Isle of Man.  Domiciled meaning residing on a permanent basis.

The Arrangement:

5.         The child must be born to a surrogate as a result of conception taking place through artificial insemination.  In other words, not following intercourse.

6.         The child lives with the applicants/intended parents at the time of the application and at the time when the order is made.

7.         The surrogate and her husband or civil partner, if there is one, (this person will automatically be deemed the legal father or “the other parent” of the child) have consented to the application.  The consent must be given at least 6 weeks after the birth in order to provide them with a cooling-off period. A City Law Firm LLP will ensure your agreement in the USA contains a provision that she must sign this application form and will provide them with the documents to return to us following the 6 week period.

8.         No more than reasonable expenses have been paid to the surrogate mother for the arrangement.   The Court will consider this carefully and will decide what constitutes a reasonable expense on a case by case basis. However, UK case law has overruled provisions where expenses have been considered too much under UK law, but fair in other jurisdictions and in its in the best interest of the child. Again as your advisors we will ensure you receive all the advice you need in relation to this.

The Application:

9.         Must be made within 6 months of the birth of the child.  There is no option to extend this time frame. 

It is therefore important to ensure that all the above criteria are met before you proceed with the making of the application and we would advise that you seek independent legal advice to ensure that you avoid any potential pitfalls.

What will happen once you file your application for a Parental Order with the Court

The application is made in the Family Proceedings Court and it must be made within 6 months from the birth. There is no discretion for the court to extend the 6 months time limit.  As there is an international element to the case it may well be that the case will be transferred to be heard at the High Court.

At the first hearing, the court will usually arrange for a Court Welfare Officer (A CAFCASS OFFICER) to prepare a report and timetable any other directions it may require in order to assist in making a decision. The reporter will visit you at home and talk to both Applicants.  Their task is to report to the court on whether the conditions/criteria for applying for a Parental Order set out above are met and also to see that it is in the child’s welfare and best interests to make the order. The time this takes will depend on how busy the CAFCASS officers in the local area are and it could take anything from 3 to 6 months.

It may well also be directed that each party file a statement setting out their position. In order to ensure that your position is clearly and succinctly put to the CAFCASS Officer it is advisable to prepare detailed statements on behalf of both the Intended Parents and also for the surrogate mother before issuing the Parental Order application.  This will provide the CAFCASS Officer with the background information to your circumstances and set out clearly each of your intentions.

The Court will then have a second hearing where it will consider the report of the CAFCASS Officer and any other evidence.  On the basis that there are no issues and the Court is satisfied, the Parental Order should be granted.  If there are complications then the case may well be transferred to the High Court.

Other issues to consider

Citizenship and Immigration

A further factor and one of paramount concern is whether the parents will be able to bring the child back to the UK. 

If the child is not entitled to British citizenship at birth then the child may have no automatic right to enter the UK.  It may be necessary to apply for a discretionary grant of citizenship and/or entry clearance.  Such applications with the immigration authorities are separate from the above applications for a Parental Order.

We would however advise that you seek specialist immigration advice.

Surrogacy Agreements

Under English law, we are not permitted to enter into any negotiations on your behalf in relation to the contents of the Agreement and can only advise on the terms of the same. 

Furthermore, it is important to note that surrogacy agreements are not enforceable in the UK Courts.  This therefore means that if you enter into a Surrogacy Agreement it is not legally binding and the Court can overrule what is contained in the contents of such an agreement and has wide discretion to make a decision which it deems to be in the best interests of the child.  In practice, the family courts have proved sympathetic to the intended parents applying for a Parental Order and can take into consideration the terms of the Surrogacy Agreement so it may be worth considering entering one.  Such an agreement can help to iron out any difficulties from the start and ensure that all parties are starting from the same position. This is especially recommended if you have a UK surrogacy arrangement.

Advice in the USA

It is of course important you obtain detailed legal advice from an expert in the USA to ensure you are completely aware of your position legally there. 

A City Law Firm LLP child and family specialists can arrange this for you at a fixed fee simply call us today for a consultation.