The use of overseas surrogate mothers by British couples is increasingly common. Surrogacy contracts (if indeed there is one) are not enforced by UK law and are only legally binding in a small number of countries. These situations can be both highly complex and given the nature of the arrangement, emotionally highly charged.
If you are considering entering into a surrogacy contract you will find it can be a lengthy and complicated process and besides the obvious issue of the new child’s passport and nationalisation, is the need for a UK based parental order that transfers legal rights from the surrogate mother.
In the UK, the law says that the mother of a child is the woman who gives birth to that child and the father is the man she is married to at the time of conception. Therefore, if the overseas surrogate mother is married, although the prospective parents’ names should be on the child’s birth certificate (given a parental order has been agreed), the child is not necessarily recognised as automatically eligible for British nationality.
The intended parents must apply to the Home Office for registration of the child as a British citizen before applying for a UK passport. On the other hand, if the surrogate mother is single, such an application to the Home Office is unnecessary provided that the father has provided evidence that he is genetically related to the child.
There are two types of surrogacy which present different legal implications:
- The first, “traditional” surrogacy, or artificial insemination, involves insertion of sperm into the fallopian tube of the surrogate mother, who will consequently be the biological mother of the child. As a result, the surrogate mother must agree to a series of legal obligations and transfer her rights as the parent of the child to the intended parents.
- The second, “gestational” surrogacy, more commonly known as in vitro fertilisation (IVF), involves implantation of an externally fertilised embryo where the biological parents do not involve the participation of the surrogate mother; therefore the child and the surrogate mother are biologically independent of one another. Whilst the embryo may have one, both, or neither parents as participants in the surrogacy, under UK law the mother and father of the child is the woman who gives birth to the child and the man she is married to at the time of conception.
Both of these scenarios require the use of accredited DNA paternity testing, as this is imperative to confirm the biological father of the child and, ideally, also the biological parentage of the mother if the surrogacy is gestational.
If you are involved in such an arrangement and need a DNA test or more information on our DNA testing services then please contact us so that we may provide you the best advice for your testing requirements.
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Please find enclosed a link to the HMCTS Parental order form, C51, in English and Welsh. HMCTS require a fee of £215 to be paid per application.
Form C51: Application for a Parental Order (Section 54 Human Fertilisation and Embryology Act 2008).
You nay also need the acknowledgement form, C52:
Acknowledgement (Section 54 Human Fertilisation and Embryology Act 2008).
Also useful will be form A101A:
Agreement to the making of a parental order in respect of my child. Section 54 of the Human Fertilisation and Embryology Act 2008.
For this application you will need the original birth certificate for the child and any evidence of your marital status; a separate Parental Order is required for each child. The original stays with the family court and your copies are required for CAFCASS and each of the respondents (the surrogate mother and their partner).
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