Surrogacy has become an increasingly prevalent option for couples and individuals seeking to build a family.
Introduction
As the demand for surrogacy grows, so does the complexity of legal and ethical considerations, particularly in cases involving international surrogacy arrangements. This article explores the intersection of surrogacy, immigration law, and international regulations, while also exploring some popular destinations for overseas surrogates.
The legal landscape
Navigating the legal landscape of surrogacy can be challenging, especially when crossing international borders. Laws governing surrogacy vary significantly from one country to another, and in some cases even within different regions/states of the same country. International surrogacy arrangements raise complex issues related to citizenship, parentage, and immigration.
Some countries such as Canada and the US are considered to be “surrogacy friendly” on the basis that they recognise both altruistic and commercial surrogacy arrangements. They also offer legal structures supporting such arrangements. It is however important to note that the regulations can differ from state to state, creating a complex legal landscape for both surrogates and intended parents.
By contrast, European countries including Italy, Spain, France and Germany outlaw compensated surrogacy arrangements. Italy has gone as far as to make it a criminal offence for its citizens to travel abroad to have a baby through surrogacy.
Other jurisdictions such as the UK and Australia adopt a middle ground approach, permitting altruistic surrogacy but prohibiting commercial surrogacy.
International law
While there is no universal law governing surrogacy, several international conventions and agreements address the rights and protection of children born through surrogacy. The Hague Conference on Private International Law has developed guidelines to address conflicts of law in surrogacy cases, emphasising the importance of ensuring the best interests of the child. However, adherence to these guidelines is voluntary and not all countries have ratified or adopted them. Some countries have also enacted their own domestic legislation to regulate surrogacy within their borders.
Immigration considerations
One of the most significant challenges in international surrogacy is navigating immigration laws and procedures.
Obtaining British citizenship for the child in the intended parents’ home country may require fulfilling specific criteria and providing documentation to establish parentage. This will need to be investigated at the earliest opportunity.
A child will automatically be a British citizen if born outside the UK and all the following apply:
- they were born on or after 1 July 2006
- the mother or father was a British citizen when the child was born
- the British parent could pass on their citizenship to the child. British citizenship can be passed to a child if the biological parent was born or adopted in the UK; given citizenship after applying for it in their own right (not based on having a British parent); or working as a Crown Servant when the child was born (for example in the diplomatic service, overseas civil service or armed forces).
If the child is entitled to British citizenship, an application must be made for a British passport from overseas. Because surrogacy is often complex, applying for a passport is also likely to be complex and can take several months.
If the child is not entitled to British citizenship and cannot apply for a British passport, then you should seek specialist legal advice on the most appropriate process for bringing your child to the UK.
In many cases, intended parents must apply for immigration permission for the child to bring them back to their home country. Parents will of course want to bring the child back to the UK as quickly and safely as possible. Immigration requirements vary widely, depending on the circumstances, and failure to comply with UK Immigration Rules can result in legal complications and even the denial of entry for the child.
It is vital to allow time for these processes, including making sure plans account for a lengthy stay in the country where the child is born.
Popular destinations for overseas surrogacy
Several countries have become popular destinations for overseas surrogacy due to various factors, including favourable legal frameworks, accessibility, and affordability. Among the most notable destinations are:
India: once a hotspot for international surrogacy, India implemented stricter regulations in recent years, limiting surrogacy to Indian citizens and banning commercial surrogacy for foreigners. However, the legal landscape continues to evolve, with ongoing discussions about potential reforms to surrogacy laws.
Ukraine: with relatively lenient regulations and lower costs compared to Western countries, Ukraine has emerged as a popular destination for overseas surrogacy. The country allows both altruistic and commercial surrogacy arrangements, and provides clear legal pathways for intended parents as they are recognised as the legal parents from birth. Whilst the conflict in Ukraine has undoubtedly impacted the accessibility of surrogacy services in the country, a number of fertility clinics continue to operate and have adapted their services to fit the ongoing situation that they find themselves in.
United States: known for its well-established legal framework and advanced medical facilities, the United States remains a top choice for many intended parents seeking surrogacy services. However, surrogacy in the US can be prohibitively expensive making it accessible primarily to wealthier individuals or couples. The legal requirements and processes for surrogacy vary between states, adding another layer of complexity. A big draw is that the US and Canada grant nationality on the basis that the child is born there which means it could take only 2-3 weeks to bring the child home. (Note that it is still necessary to apply for a UK passport).
Georgia: as one of the few countries where commercial surrogacy is explicitly legal and regulated, Georgia has attracted a growing number of international intended parents. The country offers relatively affordable surrogacy options and straightforward legal procedures.
Conclusion
International surrogacy poses significant challenges. It is very important that anyone considering international surrogacy seeks specialist legal advice in both their home country and the country where the child is to be born to ensure that they understand and comply with all of the relevant laws and regulations.
