International Surrogacy Myths

The article outlines key legal considerations in international surrogacy: parental rights, altruism vs. commercial practices, required documentation, LGBTQ+ accessibility, and genetic connection prerequisites for obtaining a Parental Order.
UK Family and Matrimonial
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There are many myths and misconceptions about international surrogacy which can make surrogacy abroad feel daunting. To help tackle this, we have set out some of the most common myths and our advice below:

  1. We are named on the child's foreign birth certificate, we do not need a Parental Order

    For a child born via surrogacy, who the legal parents are upon birth is not only a very important question but often a complicated one. This is because legal parenthood is not universal across the globe: laws vary between jurisdictions and can conflict with each other. Even if individuals are the legal parents in one jurisdiction, they may not be in another. It is therefore very important that advice is taken in all the relevant jurisdictions to the family.

    In some jurisdictions, a child's legal parents will be determined before birth and so once the child is born, the birth certificate will name the intended parents as the parents immediately. For example in many US states, a child who is born via surrogacy will be issued with a birth certificate naming the intended parents immediately.

    It is not the same in the UK and crucially therefore, this foreign birth certificate will not be recognised here and a Parental Order must be obtained to ensure that the intended parents are the child's legal parents in the UK and have parental responsibility. The Parental Order is also important to extinguish the surrogate (and her spouse if applicable).
  2. Surrogacy abroad is never altruistic

    Attitudes towards surrogacy vary hugely across the world and so it is very important to ensure that proper research is done prior to embarking on a surrogacy journey abroad. For many intended parents considering surrogacy, the welfare of the surrogate is quite rightly a priority. It is a common misconception however that all surrogacy abroad is not altruistic. For example, Canada is a very well-trodden path for surrogacy where like the UK, commercial surrogacy is prohibited. In many US states where commercial surrogacy is the norm, there is often an altruistic motive as well.

    There are jurisdictions however where surrogacy is not altruistic; it is very transactional and where the risk of exploitation to all involved is high. Research is therefore absolutely paramount, including speaking to those who have gone through surrogacy abroad and speaking to foreign lawyers and trusted professionals in the surrogacy world.
  3. No documentation is required from the surrogate after birth

    For the Parental Order application, usually there are 3 main touchpoints with the surrogate (and her spouse if applicable):

    a. A101A form - this must be completed by the surrogate (and her spouse) in front of a notary public, but it cannot be done so until at least 6 weeks after birth has passed
    b. C52 form - this is a form that should be completed by the surrogate (and her spouse) confirming acknowledgement of the proceedings
    c.The Parental Order Reporter may wish to speak to the surrogate (and her spouse) about the surrogacy arrangement
  4. Surrogacy abroad is not LGBTQ+ friendly

    For LGBTQ+ couples looking to build a family, surrogacy abroad is possible and in many locations it is a very well-trodden and successful path. We represent lots of LGBTQ+ parents who have had a child or even multiple children via surrogacy abroad. The key take away is that researching early on is vital and that this research is focused on speaking to surrogacy professionals, such as lawyers, in that foreign jurisdiction.

    There is unfortunately a lot of misinformation online and in particular, a worrying trend has been 'pop up' surrogacy agencies who advertise surrogacy to be LGBTQ+ friendly despite it being illegal in that jurisdiction. Not only can embarking on a journey such as this cause issues in that country but it can also do the same once back home in the UK and hinder your application for a Parental Order. If you are considering surrogacy abroad but are not sure where to start, please get in contact with us and we can direct you to an array of lawyers abroad.
  5. There is no need for a genetic connection between the intended parents and the child

    In order to obtain a Parental Order, at least one of the intended parents (or the single intended parent) must be genetically connected to the child. It may be that both intended parents are genetically connected but often, there is a donor involved. Without a genetic connection, it will be impossible to obtain a Parental Order.

    The court will expect to see evidence confirming the genetic connection. Commonly, this is by virtue of a letter from your fertility clinic(s) who created the embryos and undertook the embryo transfer or alternatively a DNA test.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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