International Surrogacy For UK Couples - All You Need To Know

In the UK, it is only UK law that determines legal parenthood.

As such, neither a birth certificate nor a court order from a foreign jurisdiction will have any impact on determining legal parenthood in the UK.

The woman who gives birth is the legal mother of the child, regardless of genetics. If the surrogate is married, her husband or wife will usually be the second legal parent.

For that reason, after birth, the intended parents will need to make a court application for a Parental Order, to obtain parental rights.

This will transfer legal parenthood from the surrogate (and her husband, if she is married) to the intended parents.

International cases are usually dealt with in the High Court.

The High Court will issue guidance on the evidence required before a Parental Order can be made.

To make an application for a Parental Order, a number of conditions must be met. Surrogacy agencies dealing with British intended parents must be aware of these conditions and provide all the documentation to meet them.

Applications can be made by anyone in an “enduring family relationship”, married, in a civil partnership or unmarried. Single parents can also apply for Parental Orders. Parental Orders can be made in favour of opposite-sex and same-sex couples. Intended parents must be over 18.

The application should be made within six months of the child being born and:

• The surrogate (and her husband, if relevant) must freely consent to the transfer of legal parenthood not earlier than 6 weeks after the birth and this consent must be confirmed again later, in court proceedings. The consent of the surrogate (and her husband, if relevant) should be confirmed by using form A101;
• At least one of the intended parents has a genetic relationship to the child;
• At least one of the intended parents must be domiciled in the UK;
• The child must be living with the intended parent(s) in the UK at the time of the application.

Therefore, it is essential that the surrogacy agency provides the necessary support and documentation for the intended parents to be able to obtain/claim British nationality and to apply for travel documents to enable them to return to the UK with their child.

The UK court will need to send to the surrogate (and her husband, if relevant) all legal papers transferring parenthood. Therefore, the intended parents must give notice to the surrogate (and her husband, if relevant) of the application for the Parental Order. This should be confirmed by completing Form C52.

There is no need for the surrogate to participate in court proceedings, but there must be an acknowledgement that the papers have been received and a confirmation that she (and her husband, if relevant) does not wish to participate in the court proceedings or challenge the transfer of parenthood to the intended parents.

The surrogate must be directly contactable throughout court proceedings. For this purpose, the intended parents will need the address of the surrogate. It is not enough to provide the address of the surrogacy agency and this could prevent a Parental Order being made.

Once you have made an application for a Parental Order, a Parental Order Reporter will be appointed by the Court. They will assist the Court in deciding whether a parental order is in the child's best interests.

What will the Parental Order Reporter consider?

The child's welfare will be the Court's paramount consideration when deciding whether to make a parental order. Consideration is given to the welfare of the child and in particular, the 'welfare checklist', including, non-exhaustively:

• The needs of the child;
• Any possible risk of harm to the child;
• The relationship the child may have with any relatives; and
• The child's background and whether they will grow up with a knowledge of their origins.

The Parental Order Reporter will need to establish that the surrogate (and her husband, if relevant) consent. The Parental Order Reporter may also carry out background checks with the local authority and the police to see if there is any information that would be relevant to the child's welfare.  

The Parental Order Reporter will prepare a report for the Court to recommend whether a Parental Order should be made. On the guidance of the Parental Order Reporter and on consideration of the international complexities which will vary from case to case, the court can make a Parental Order transferring legal parenthood to the intended parents.

UK law does not permit surrogacy agencies to work within the UK on a commercial basis, including negotiating a surrogacy on a commercial basis. However, this does not make commercial arrangements in other countries illegal and does not apply to agencies when operating outside of the UK.

In order to transfer parenthood to the intended parents, the court will need to authorise any money that has been given or received in relation to the surrogacy.

All payments made to the surrogate and the surrogacy agency must be documented in detail. It is helpful for surrogacy agencies to provide intended parents with a detailed and itemised invoice, which sets out the sums paid in relation to the surrogacy arrangement.

The courts have consistently approved payments made to foreign surrogates and surrogacy agencies.

Prof. Nardo obtained his MD from the University of Catania, Italy, and holds an FMH registration from the Federal Office of Public Health in Switzerland, registration with the Dubai Health Authority and he is on the General Medical Council in the UK as specialist in obstetrics and gynaecology.

He is a Member of the Royal College of Obstetricians and Gynaecologists in the UK, with additional certifications in Reproductive Medicine & Surgery, Laparoscopic Surgery, and Pelvic Ultrasound from respected institutions in the UK. Prof. Nardo is also a distinguished member of multiple professional societies, and his expansive career spans over two decades across the UK, Italy, Switzerland, and the UAE.

Amongst various appointments, Prof. Nardo has held prominent roles including Consultant in Gynaecology and Reproductive Medicine at St Mary’s Hospital (Manchester), CEO and Consultant in Reproductive Medicine & Surgery at the Reproductive Health Group (UK), Visiting Professor in both the UK and Italy, and is currently Founder & President of NOW-fertility SA, Switzerland.

Prof. Nardo’s clinical and academic expertise covers male and female infertility, fertility preservation, assisted conception (IVF), reproductive endocrinology, early pregnancy, reproductive surgery and management of benign gynaecological conditions. With over 120 peer-reviewed publications, several book chapters and more than 700 lectures delivered globally, he is a widely respected voice in reproductive medicine, infertility and reproductive endocrinology.

Should you have any questions about fertility treatment and the use of IVF to create embryos for surrogacy in the UK or overseas, please do not hesitate to contact Prof. Nardo on +971 54 266 0006 (UAE) / +44 778 657 3637 (UK), or by email at lucianonardo@now-fertility.com