International Surrogacy - what prospective parents need to know (part 2)

International surrogacy arrangements have received very bad press in recent times. The proliferation of stories involving immigration complications, debates over exploitation and lengthy delays in establishing parentage, may have resulted in would-be parents changing their minds about having a child via this method.

Whilst there are risks involved with becoming a parent via international surrogacy arrangements, couples who have obtained the necessary advice and taken the necessary precautions can help protect themselves against these risks. This series of articles examines some of the issues that prospective parents should seek legal advice on. The first article in this series considered why researching the home country of the surrogate was so important, this week’s article considers the importance of prospective parents receiving legal in this country, as well as receiving advice in the country of the surrogate.

1. Obtaining legal advice in the jurisdiction of the surrogate, in the UK and elsewhere

The importance of seeking specialist legal advice before embarking on the surrogacy process cannot be underestimated. The process of surrogacy is complex and fraught with inconsistencies, subtleties and potential risks. Whilst legal costs may be an initially unattractive thought for commissioning parents, the costs of obtaining legal advice for the purposes of prevention, rather than a cure, of surrogacy complications mean that it is a good investment.

Commissioning parents who are using a surrogate from a different jurisdiction should be obtaining advice from family and immigration lawyers. This advice should be sought in the UK, the jurisdiction where the child is born and also from any jurisdiction where the commissioning parents may have citizenship/right to live. This advice is particularly crucial if either one or both of the commissioning parents do not have British citizenship as this can be a complicating factor when planning for the travel arrangements which will need to be made for the child once he/she has been born.

Commissioning parents also need to be mindful that beneficial surrogacy laws in other jurisdictions do not carry over to the UK. For example, whilst in Ukraine and California, the commissioning parents can be legally recognised as the child’s parents prior to birth, in the UK, the surrogate mother (and her spouse if applicable) will legally be the child’s parents until a Parental Order is obtained. Therefore, steps taken in other jurisdictions to establish parentage cannot replace or circumvent the necessary applications which need to be made in through the UK Courts.

If you would like any further advice regarding this, or any other, family law issue please contact a member of our specialist Family Law Team.