Mishcon Academy: Digital Sessions podcast – Surrogacy

Posted on 23 June 2020

In this episode, why is the US an attractive location for a surrogacy arrangement?  What should intended parents from the UK take into consideration prior to entering into a surrogacy arrangement, from both a family law and immigration law perspective?  And, how is Covid-19 impacting even the best planned surrogacies? 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

Hello, and welcome to the Mishcon Academy Digital Sessions Podcast.  I am Natalie Loader, an Associate in Mishcon’s Immigration Team.  Today, I am speaking with colleague, Emma Willing, a Legal Director in our Family Team about US-UK surrogacies.  In accordance with Government guidelines, we are observing the ongoing requirement for social distancing and we are recording this session from our respective homes. 

Hi Emma, thanks for joining me today.  You and I have worked together on a number of US-UK surrogacy cases including, most recently, during the Covid-10 pandemic so I thought it would be interesting for us to talk a little bit about our experiences but firstly, can you explain why so many parents seeking to expand their families through surrogacy look to certain States in the US?

Emma Willing, Legal Director

Mishcon de Reya

Hi Natalie, sure.  So, whilst surrogacy is not illegal in the UK, commercial surrogacy arrangements are prohibited and as such the law prevents commercial surrogacy and advertising for surrogates so this can make it very difficult for intended parents to locate a surrogate in the UK other than on an altruistic basis.  This means, intended parents often look to travel abroad to countries, such as the US and specifically States including California and Florida, where the frameworks surrounding surrogacy is far less restrictive.  However, not all US States permit commercial surrogacy.  It is also possible in States such as California to obtain something called a pre-birth order, this results in legal parentage being transferred for Californian purposes to the intended parents prior to the surrogate baby’s birth and the intended parents can then be named on the baby’s US birth certificate after birth. 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

I see.  So, certain states in the US can provide intended parents with more certainty and the regulation of surrogacy is far more advanced than in the UK.  So, if intended parents travel abroad to somewhere such as California where they can obtain a pre-birth order transferring legal parentage before birth, does that mean they are also considered legal parents in the UK?

Emma Willing, Legal Director

Mishcon de Reya

Unfortunately, it’s not as simple as travelling abroad and opting into a foreign system even if a surrogacy arrangement is entered into overseas where you are recognised as the child’s legal parent, this will not be the case in the UK.  From a UK perspective, the surrogate and her husband, wife or civil partner will be considered as the legal parents even if they have no genetic link to the surrogate baby.  In order to be recognised as a child’s legal parent in the UK, intended parents must obtain something called a Parental Order. 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

So, even though the US would consider the intended parent the legal parent, the UK would not until there is a Parental Order but why does legal parentage even matter?

Emma Willing, Legal Director

Mishcon de Reya

So, the term ‘legal parent’ refers to an individual’s legal status in respect to a child, it most importantly defines who a child’s legal parents are and is relevant in relation to matters such as inheritance entitlement, nationality and financial responsibility.  A child can only have two legal parents.  But a question for you Natalie, what is the significance of legal parentage from an immigration perspective?

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

Well, legal parentage from an immigration perspective determines how British citizenship will flow to the surrogate child.  We often find that British intended parents are not aware that their surrogate child born outside of the UK may not be British and therefore may not be able to apply for a British passport or even have an entitlement to live in the UK without a visa.  Legal parentage, from an immigration perspective, determines if the baby is British at birth or not.  Under British nationality law, the mother of a child is always the woman who gives birth to a baby even if there is no genetic connection between the surrogate and the child.  As such, a British intended mother whether genetically connected to the baby or not, is never able to pass her British citizenship to the surrogate child automatically.  Under British nationality law, a British intended father can pass his nationality onto the surrogate baby but only if the following conditions are met.  Firstly, he is the genetic father of the baby and secondly, the surrogate mother is not married.  If the surrogate mother is married, then her spouse will always be considered the father of the baby.  And thirdly, the British intended father must hold the type of British citizenship which allows him to transfer his nationality to a child born outside of the UK and here is where it gets a little bit complicated.  It may not be common knowledge but there are two types of British citizenship.  The first is known as British citizenship by descent and the other is known as British citizenship otherwise than by descent.  It’s all a bit of a mouthful.  The by decent citizenship usually means that the father was born outside of the UK and was entitled to citizenship through birth, through one of his British parents.  If the intended father holds this type of citizenship, he can only transfer it to his child if his child is born in the UK.  If the intended father was born in the UK to British parents or parents who had permanent residency in the UK at the time of his birth or if the intended father naturalised as British after having held a visa to live in the UK, it’s likely he will hold the other type of British citizenship, namely British citizenship otherwise than by descent.  And although I hesitate to label it like this, this form can be seen as a higher form of citizenship as it will allow the father to pass on his British citizenship to children born in the UK and outside of the UK.

Emma Willing, Legal Director

Mishcon de Reya

So, Natalie, just so I am clear, a male intended parent who is British can only pass his British nationality automatically to the baby if he is genetically connected to the child, the surrogacy is not married and he holds the higher form of British citizenship?

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

That’s right, Emma. 

Emma Willing, Legal Director

Mishcon de Reya

And so, if citizenship can automatically flow to the surrogate child upon birth because those conditions are met then the child will be British at birth and entitled to apply for a British passport and will not need any special immigration permission to live in the UK.  However, if the acquisition of citizenship is not automatic, the baby will need to become British in order to live in the UK without the need for a visa and they will do this by making a British citizenship application to the Home Office.  If the baby does not become British and has an entitlement to another nationality then the baby will need to get a passport for that other nationality and may need a visa to travel to the UK and to live in the UK.  As such, legal parentage can impact how quickly a baby can obtain a passport to travel home to the UK with the intended parents and if the baby will need a visa to live in the UK. 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

So, we can see how legal parentage impacts both the immigration and family law sides of a surrogacy arrangement.  So, Emma, while in the US the intended parents will be the legal parents and able to make decisions relating to the surrogate child, however, how do they obtain legal parentage once they have returned to the UK from the US?

Emma Willing, Legal Director

Mishcon de Reya

Sure.  So, in order for intended parents to become the legal parents, it is necessary for a Parental Order to be applied for in the UK.  There are various conditions which must be met in order to obtain such an Order.  At least one of the intended parents must have provided the genetic material used to create the embryo.  Therefore, if an embryo is created using a donor egg and donor sperm, it would not be possible for a Parental Order application to be made and another application would need to be considered, including possibly the route of adoption.  At the time of the application being made, the child must be living with the intended parents and at least one of the intended parents must be domiciled in the UK.  No money or benefit must be given or received by the surrogate other than for reasonable expenses unless the Court authorises such a payment.  The application must be made within six months from the birth of the child and the surrogate mother must give free and unconditional agreement with a full understanding of the Order being made.  That agreement from the surrogate must be obtained no earlier than six weeks after the birth of the child.  So, it’s therefore really important that advice is sought prior to entering into any surrogacy arrangement in the US in order to ensure that the necessary criteria for obtaining a Parental Order in the UK are met.  It is of course normally the case that parents are always very focussed on the arrival of their baby and often the immigration considerations are overlooked until the very last minute or after the baby has been born.  Natalie, once a surrogate baby has been born in somewhere such as California, what steps are then required to be taken in order to ensure that the intended parents are able to return back to the UK with their baby?

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

That’s very true, Emma, the focus can be the arrival of the baby and many parents may not be aware that there will be any immigration implications at all.  In some popular surrogacy jurisdictions, obtaining a passport for the baby can be problematic as the application for a baby to be registered as a British citizen can take up to six months but sometimes longer and then even longer still for the baby’s first British passport to be granted after the citizenship application has been successful.  This very long process to obtain a British passport can prevent intended parents from returning home to the UK with the baby for a considerable period of time.  Part of what may make the US a popular country for surrogacy is that any baby born in the US is automatically a US national and can obtain a US passport very quickly after birth to enable travel.  This makes returning home to the UK much faster and far less problematic than other jurisdictions.  As US nationals can travel to the UK as visitors without first applying for a visa, the surrogate baby can travel to the UK on his or her US passport but rather than seek entry to the UK as a visitor, the intended parents must ask UK immigration at the airport to grant the baby discretionary leave to enter the UK on the basis that the baby was born by way of a surrogacy arrangement and a Parental Order application will be made.  It is important to travel before the necessary documentation to evidence the surrogacy, the basis on which the baby can apply for British citizenship and the fact that a Parental Order application will be made.  This is because you will need these documents to show to UK immigration for them to be able to grant the discretionary leave to enter.  And then once in the UK, a registration application can be made for the baby to be granted British citizenship.  When the citizenship is granted, then the baby can apply for their first British passport to the Passport Office.  It’s important to remember that this process applies to UK-UK surrogacies, the process may be different if the baby is born in another country.

Emma Willing, Legal Director

Mishcon de Reya

Natalie, what specific considerations have there been as a result of the Covid-19 pandemic from an immigration perspective and in respect to surrogacy cases?

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

So, Covid-19 has caused a number of difficulties for US-UK surrogacies.  Firstly, America’s travel ban on British nationals has been a very sad complication as the ban prevents anyone travelling to the US from the UK unless they are US nationals or direct family member of US nationals.  For British nationals who have no US nationality or US family members, the ban has meant they have not been able to travel to the US to be there for the births of their surrogate babies.  This has been devastating for some intended parents, however, once the baby is born, because the baby is automatically a US national at birth, they become the immediate family member of the US national and so at this point they become exempt from the ban.  Secondly, while ordinarily as soon as the US birth certificate has been issued, it is possible for the intended parents to apply for a US passport for the surrogate child.  The US Passport Agency has been closed due to the pandemic and is not accepting first passport applications.  As such, while usually surrogate babies can obtain their US passport in a matter of days to enable them travel, no passports are being issued and therefore the babies are not being issued with documents to enable travel. 

Emma Willing, Legal Director

Mishcon de Reya

Have any solutions been found to combat that issue?

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

Well, during the pandemic, the UK’s Home Office and the UK’s Passport Office have both recognised the urgency for surrogate babies to travel home to the UK with their intended parents.  For babies who are not automatically British, we have worked with the Home Office for them to be granted British nationality quickly, in a matter of days rather than months.  Once nationality has been granted, the Passport Office has issued British emergency travel documents to the babies so that they can travel home to the UK with their intended parents. 

Emma Willing, Legal Director

Mishcon de Reya

Natalie, can you explain what emergency travel documents are?

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

Of course.  So, emergency travel documents are one time travel documents which fulfil the purpose of the passport but only for one return journey to the UK.  Usually it is not possible to obtain an emergency travel document if the applicant has not previously held a British passport, however, the Passport Office is making an exemption to this rule during the pandemic.  This has meant that British intended parents have actually been able to return home to the UK relatively quickly even during the crisis.  Additionally, while it does seem strange, this process has resulted in a silver lining from an immigration standpoint as some intended parents are in a better position than they would usually be at the point of returning to the UK because the surrogate babies who are not automatically British at birth have already had their nationality applications approved by the Home Office so once in the UK, all that remains to be done is to apply for first British passports. 

So, Emma, what about from a family law perspective?  Have there been any specific family law considerations as a result of Covid-19?

Emma Willing, Legal Director

Mishcon de Reya

Natalie, as you have mentioned, unfortunately as a result of travel restrictions and quarantine, sadly it’s not always been possible for intended parents to be present at the baby’s birth or immediately after.  In one of our very recent cases, the intended mother managed to travel to Ohio shortly after the birth of her surrogate twins on the 20 March, that was just after the earth’s travel restrictions had gone into place.  However, as it had been very uncertain in advance whether she would be able to make it to the US, even after the birth, we were required to consider matters including whether another adult should be appointed to act as a guardian or attorney for the purpose of caring for the baby, making decisions in relation to medical treatment and for administrative purposes, for example, in order to make applications for birth certificates and passports.  Another issue which arises is that until intended parents have a Parental Order, which can take some time to obtain in the UK, there is a period during which intended parents do not have parental responsibility. 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

So, is parental responsibility distinct from legal parentage in that case?  What can intended parents do to exercise or obtain parental responsibility while waiting for the Parental Order to be granted by the Courts?

Emma Willing, Legal Director

Mishcon de Reya

Yes, parental responsibility is a concept which is separate from legal parenthood.  Parental responsibility gives an individual the authority to make decisions about a child’s care, including decisions in respect to matters such as medical care, education and religion.  Once a Parental Order has been made, intended parents will automatically have parental responsibility, however, it can take some time for such Orders to be made by the Courts, particularly at the moment.  In the absence of parental responsibility, it’s possible that once intended parents return to the UK they will be unable to consent to matters such as emergency medical treatment, for example, if the child needed an urgent operation.  One immediate step which can be taken to address this is to obtain a letter of authority from the surrogate confirming her authority for the intended parent to exercise parental responsibility.  It’s also possible that pending a Parental Order being made, another application can be made to the UK Court so that parental responsibility is conferred immediately.  We have recently obtained an Order from the Court to ensure that the intended mother of twins born via a surrogacy arrangement, is able to exercise parental responsibility, including to make any necessary medical decisions.  It’s important that parental responsibility is conferred in the interim period prior to legal parentage being transferred by way of a Parental Order, particularly if there are any medical concerns in relation to the child. 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

Emma, do you think there’s anything else outside of a family or immigration context that intended parents should consider?

Emma Willing, Legal Director

Mishcon de Reya

Yes.  Natalie, as you’ve already covered, if a child is born in the US, they will automatically be US citizens.  This will also result in them being US taxpayers and therefore renouncement of US citizenship may need to be considered in due course, albeit that needs to be balanced up against the benefits of retaining US citizenship in the future.  Other considerations include estate planning, including a review of any family trusts, appointing guardians for children in Wills and ensuring that all estate planning is properly in place. 

Natalie Loader, Associate, Professional Support Lawyer

Mishcon de Reya

There’s certainly a lot to think about when considering an international surrogacy.  I think the key, of course, is early planning and obtaining legal advice right at the beginning of the surrogacy process so that there are no unexpected difficulties once the baby has arrived. 

That’s all we have time for now but I hope this discussion has been informative.  I would like to extend my thanks to Emma Willing for joining me for this Mishcon Academy Digital Sessions podcast.  I am Natalie Loader and in the next episode, my colleagues Joe Hancock and Katy Ling will be talking about current trends in cyber fraud and what companies need to protect against during the recovery period. 

The Digital Sessions are a new series of online events, videos and podcasts, all available at Mishcon.com and if you have any questions you would like answered or suggestions of what you would like us to cover, do let us know at coronavirus@mishcon.com.  Until next time, take care. 

Mishcon Academy Digital Sessions

Mishcon Academy: Digital Sessions are a series of online events, videos and podcasts looking at the biggest issues faced by businesses and individuals today.

Join Legal Director Emma Willing and Associate Natalie Loader as they discuss the key things to consider when it comes to surrogacy in the UK and the US.

This Mishcon Academy: Digital Session podcast covers why the US an attractive location for a surrogacy arrangement, what intended parents from the UK should take into consideration before entering into a surrogacy arrangement from both a family law and immigration law perspective, and how COVID-19 is affecting even the best planned surrogacies.

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