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 transfer her rights as the parent of the child to the individual(s) who have opted for surrogacy.
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 possibilities 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, please contact us and speak to our experienced case managers who are experts in this field.