International Surrogacy

1 June 2021

Embarking on a surrogacy arrangement abroad can be daunting for anyone wishing to engage in this process. There are lots of things that any intended parent(s) needs to carefully consider, which will ensure that the process runs as smoothly as possible. With international surrogacy arrangements you need to consider cross-border issues and plan for your return to the U.K.

As it stands there is no single legal process for parents wishing to engage in an international surrogacy arrangement. With every case, careful attention and legal planning is required to ensure that parents are able to engage in the process without the pitfalls. It is vital that all intended parents plan properly and consider using those countries that are well-established in the surrogacy field. The U.K courts will want to ensure that any foreign surrogate fully understands her rights and any documentation that she has been provided with for signature. The U.K courts will also have to consider issues of domicile as well as the expenses paid for any commercial arrangement.

There are many countries across the world that welcome the process of surrogacy and the United States, such as California and Canada are extremely popular because of their experience and laws in this area. For children born in Canada or the United States they are recognised as Canadian or American citizens and parents from the UK can obtain a passport within a three month period. It is normal to expect that the majority of those parents engaged in this process travel back to the UK with the child/children(s) foreign passport. Parents must be aware that there is no guarantee that they will be admitted with their child/children to the United Kingdom, because of visa complications, and so careful planning is required. Intended parents can of course apply for a British Passport or an entry clearance visa stamp in the United States prior to travel to eliminate any issues. However, parents must be aware that this can take time.

A British passport is generally only available immediately if the surrogate is unmarried and the British biological father is registered on the child’s birth certificate in the United States (for particular states). The alternative is that the child/children will be registered as a British Citizen or will have to apply for an entry clearance visa.

For other countries that are perhaps not as well-established as the United States or Canada, such as Thailand, Russia, Georgia, Ukraine and India) there are multiple options to consider. It is vitally important that intended parents undertake as much research as possible to eliminate any possible pitfalls.

Intended parents are able to obtain a British passport for their child/children if he or she is born British or successfully registered as a British Citizen. Parents can apply for an entry clearance visa, which is granted on a discretionary basis where intended parents can undertake to apply for a parental order.

A visa either takes the form of a stamp in a foreign passport or a free-standing travel document if the child has no passport.

Planning is vital and parents must be prepared to stay in the birth country for a period of 4-5 months.

The main countries that permit altruistic surrogacy include Australia, Canada (save for Quebec, where all surrogacy contracts are unenforceable), Georgia, Greece, New Zealand, and the United Kingdom. In those countries commercial surrogacy is illegal. The popular destination for altruistic and commercial surrogacy is the United States, although it is not accepted in every state. The states that permit commercial surrogacy include California, Illinois, Arkansas, Maryland, and New Hampshire.

The countries that do not permit either commercial or altruistic surrogacy include Finland, France, Hong Kong, Hungary, Iceland, Italy, and Pakistan. The laws in each country can change very quickly, so keeping abreast of developments is crucial. At the time of preparing this article the above information is correct and current, but this can change and subject to the country’s laws.

It is advisable that you do as much research as possible should you decide to embark on international surrogacy. Please do contact us for a scheduled appointment should you wish to engage in the firm’s planning portal for international surrogacy.

Anne-Marie Hamer
Partner - Family
Annie-Marie Hamer is a Partner Solicitor at Spencer West. She specialises in family law, international, finances, private children law, collaborative law, surrogacy, and adoption.