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Immigration and nationality law following surrogacy agreements

Immigration and nationality law following surrogacy agreements

A surrogacy arrangement is, broadly speaking, where a woman carries and delivers a child for another couple or person. Under section 2(1) of the Surrogacy Arrangements Act 1985, it is a criminal offence for a person on a commercial basis to initiate or take part in a surrogacy agreement in the UK.

Many families in the UK opt for countries where commercial surrogacy is lawful, such as the USA and Ukraine.

However, children born out of surrogacy arrangements will not necessarily be born British, even when the commissioning parents are British. This is mainly because of the definition of “father” and “mother” under British nationality law.

Questions then arise as to the nationality of such children and whether they can be lawfully brought back to the UK. These children are subject to immigration law, even if their commissioning parents are British, and may need visas, or may need to become British, before they are allowed to enter the UK.

This is a complex area of law which combines immigration, nationality and family law. Every case is very much fact-specific and this post only intends to give a background to the law, factors to consider, and where to find some Home Office guidance about cases involving surrogacy. I would strongly advise anyone entering into surrogacy arrangements abroad to seek family, immigration and nationality legal advice first.

Definition of “mother” and “father”

The very first thing to bear in mind is the definition of parents under British nationality law. Section 50(9) of the British Nationality Act 1981 states that:

For the purposes of this Act a child’s mother is the woman who gives birth to the child.

In other words, the surrogate mother, and not the commissioning mother, will always be the mother in British nationality law as it stands.

Who is the father is a more complex question. The definition is found at section 50(9A) of the British Nationality Act:

For the purposes of this Act a child’s father is—

(a) the husband, at the time of the child’s birth, of the woman who gives birth to the child, or

(b) where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or

(ba) where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or

(c) where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to proof of paternity.

In other words, who the father is depends on the marital status of the surrogate mother.

If the surrogate mother is married to a man, then he will be treated as the father, whether or not he has any biological links to the child, under subsection (a).

If the surrogate mother is married or in a civil partnership with another woman, that other woman will usually be the other parent under subsection (ba).

If the surrogate mother is single, then one needs to look at subsection (c), and the requirements as to proof of paternity. These are found in the British Nationality (Proof of Paternity) Regulations 2006, as amended by the British Nationality (Proof of Paternity) Regulations 2015. They say:

For the purposes of section 50(9A)(c) of the British Nationality Act 1981, the prescribed requirement as to proof of paternity is that the person must satisfy the Secretary of State that he is the natural father of the child.

Evidence to satisfy the Secretary of State of who is the natural father include a birth certificate naming the father, DNA test reports, court orders etc.

Children born British

Once we are clear who the parents are, we can look at whether the child will be born British.

Firstly, because the child will be born abroad, they could be born British only if one of the parent is British ‘otherwise than by descent’. Broadly speaking, a person will be British otherwise than by descent if they were born in the UK, or registered or naturalised as British citizen. Those born abroad to British citizens will be British ‘by descent’ and do not pass their British citizenship automatically to their children also born abroad.

With that in mind, a child could be born British in the unlikely event that the surrogate mother is British or, more commonly, in the event that the surrogate mother is unmarried and the commissioning father is British otherwise than by descent.

Example

Sara is a surrogate mother, and she is unmarried. Bob is the commissioning father. He is British otherwise than by descent and has a genetic link to the child, Mary. In nationality law, Sara will be the mother and Bob will be the “natural” father. Therefore, Mary is born British.

In that case, the parents can apply for a British passport for Mary. There is official guidance on how to obtain a passport in these circumstances.

Children not born British

In many cases, the child will not be born British. This could be because:

  • The surrogate mother is married, and neither her nor the spouse are British;
  • The commissioning father is British by descent;
  • The commissioning father does not have any genetic link to the child, and therefore is not the “natural father”;
  • There is no commissioning father; and the list goes on…

In these cases, we need to find other ways to bring the baby to the UK.

Option 1: parental order

Under section 1(5) of the British Nationality Act 1981, a child who is the subject of a parental order made in a UK court becomes British from the date of the order (provided it is after 6 April 2010).

This is an easy solution, although it may require the assistance of a family lawyer. However it may take a long time. The parents will often want to come to the UK before a parental order has been granted.

There may also be issues for single parents with obtaining a parental order, which should be discussed with a family lawyer.

Option 2: registration as British citizen

It is possible to register a child as British under section 3(1) of the British Nationality Act.

The guidance on registration is different depending on whether we are relying on the British citizenship of the commissioning mother or the commissioning father. If relying on the commissioning father, we must also look at whether he has biological links with the child.

If he does, the guidance for Home Office officials instructs them:

You must normally register the child where:

  • you are satisfied about the paternity of the child
  • you have the consent of all those with parental responsibility
  • had the child’s parents been married the child would have qualified for one of the following:
    • an automatic claim to British citizenship under either section 1(1) or 2(1) of the British Nationality Act 1981
    • an entitlement to registration under either section 1(3), section 3(2) or section 3(5)
    • registration under section 3(1)
  • there is no reason to refuse on good character grounds if the applicant is over the age of 10 years

In other words, the Secretary of State will usually register a child where the father is biologically related to the child and, had he been the surrogate mother’s husband, the child would have been born British or qualified to be registered as British citizen.

When relying on a commissioning father who is not biologically related to the child, the guidance states:

You must normally register the child if:

  • you have the consent of all those with parental responsibility including a notarised statement of consent from the surrogate mother
  • you are satisfied that had the child’s parents been married:
    • the child would have an automatic claim to British citizenship under either section 1(1) or section 2(1) of the British Nationality Act 1981
    • the child would have had an entitlement to registration under either section 1(3), section 3(2) or section 3(5)
    • we would normally have registered under section 3(1)
  • there is no reason to refuse on character grounds
  • the father has been granted either:
    • an order under section 30 of the Human Fertilisation and Embryology Act 1990
    • an order by a foreign court within the jurisdiction the child was born directing that he be treated in law as the child’s father

In other words, in this case, the father will also need to have a post-birth order issued in the country where the child was born, directing that he be treated as the child’s father.

When relying on a commissioning mother, the guidance states:

You must normally register the child if:

  • you have the consent of all those with parental responsibility including a notarised statement of consent from the surrogate mother
  • you are satisfied that had the woman been the child’s mother for BNA 1981 purposes:
    • the child would have an automatic claim to British citizenship under either section 1(1) or section 2(1) of the BNA 81
    • the child would have had an entitlement to registration under either section 1(3), section 3(2) or section 3(5)
    • we would normally have registered under section 3(1)
  • there is no reason to refuse on character grounds
  • the woman has been granted either:
    • an order under section 30 of the Human Fertilisation and Embryology Act 1990
    • an order by a foreign court within the jurisdiction the child was born directing that she be treated in law as the child’s mother

Again, in this case, the mother will need to have a post-birth order issued directing that she be treated as the child’s mother.

Example

Louise is the surrogate mother and is not British. She is married to John, who is also not British. Therefore, in nationality law, Louise is the mother while John is the father. The child, Meghan, will not be born British.

The commissioning parents are Kathrine and Paul. Both Kathrine and Paul are British otherwise than by descent and genetically related to the child, Meghan.

They can register Meghan under section 3(1) relying on Paul’s citizenship; or on Kathrine’s citizenship. However, if relying on Kathrine’s citizenship, they will also need a post-birth order.

Option 3: visa

It is possible to apply for a 12 month visa to allow the child to come to the UK. There is official guidance on when a visa will be granted.

It is possible to apply under the Immigration Rules, and in particular paragraph 297, when the commissioning father is also the legal father under British nationality law, but cannot pass his citizenship to the child.

The guidance states that:

If the surrogate mother has renounced her parental responsibilities (at least 6 weeks after the birth), it will be open to him to apply for entry clearance on behalf of the child, at the nearest British Diplomatic Post in the child’s country of birth. If successful, this will enable him to bring the child to the UK under Paragraph 297 of the Immigration Rules and the child would be granted Indefinite Leave to Enter the UK.

Of course, it will also need to be shown that the father will be able to maintain and accommodate the child in the UK.

The above is likely to happen only rarely (I can only think of a case where the surrogate mother is unmarried and the commissioning father has a biological link to the child and is British by descent). In all other cases, one will need to apply for a visa outside the Rules. The guidance states that such a visa will be granted:

If either of the commissioning couple has a genetic connection with the child, entry outside the Rules at the discretion of the Secretary of State may be possible, but such entry clearance will only be granted on condition that a Section 30 Parental Order is applied for within 6 months of birth and where evidence suggests that such an order is likely to be granted, (see paragraph 59 (g) below, for the list of requirements).

In these circumstances it will be necessary for one of the commissioning couple to be able to demonstrate both to the courts and to the entry clearance officer that a genetic connection with the child exists, by way of DNA evidence which will be of sufficient integrity to be acceptable to the UK courts, (see appendix 4 – below). Without this level of proof, the UK courts will not grant a Section 30 Parental Order and so entry clearance will not be granted outside the Immigration Rules at the discretion of the Secretary of State.

The guidance then go on to set out the documents they will expect to see.

Example

Let’s take the case of Mary again (see above). Sara is a surrogate mother, and she is unmarried. Bob is the commissioning father and has a genetic link to the child, Mary. Therefore, in nationality law, Bob is the father. However, Bob is British by descent and therefore cannot pass his citizenship to Mary. In this case, Bob can apply for indefinite leave to enter for Mary, provided he can show that Sara has renounced her parental responsibility more than six weeks after the birth, and he will be able to maintain and accommodate Mary in the UK.

Conclusion

This area of law is complex! What options are available to commissioning parents will depend on the nationality and marital status of the surrogate mother; on the biological links between the parents and the child; and on the nationality of the parents. A layer of complexity may be added when the commissioning parents have Indefinite Leave to Remain in the UK (but are not British) or are EEA nationals.

It is also important to think about the practicalities of bringing the baby back to the UK. All of the options above might take some time, depending on the country where the surrogacy arrangement took place. Parents may be unwilling or unable to wait in the country for too long.

It is also important to remember that family law and immigration law will not necessarily go hand in hand. Even if the commissioning parents manage to bring their baby back to the UK, that might not be the end of the story, as the child may still not be recognised as their child in family law. It is therefore important to get both family and immigration advice before entering in a surrogacy arrangement.

Nath Gbikpi
Nath is a solicitor and has worked with Wesley Gryk Solicitors since June 2014. Nath read Development Studies and Politics at the School of Oriental and African Studies (SOAS), before obtaining an MSc in Refugee and Forced Migration Studies at the University of Oxford and an LLB at the University of London.

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