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Surrogacy, citizenship and immigration: common problem scenarios

Surrogacy, citizenship and immigration: common problem scenarios

The popularity and visibility of surrogacy are on the rise, thanks in part to scientific advances, a greater acceptance of LGBT+ rights and popular celebrity stories. The thousands of families created through surrogacy have meant joy for many but the journey towards that goal is usually a challenging one, particularly where a child is born overseas.

Most intended parents would rather go through the process in the UK but restrictive surrogacy laws (which may get a re-write in the next couple of years) force many abroad. That means that British nationality and immigration law comes into play, as a child born to a surrogate mother abroad is not necessarily British and may need a visa to come to the UK to live with their intended parents.

Nath’s extremely helpful article sets out the key options for intended parents. It covers all the main bases, as well as explaining the law in detail. I’m not going to repeat that here. Instead, I’m going to look at some problem scenarios and work through some solutions to them.

Starting point: who’s your daddy?

In my experience, the most important question to always ask whenever approaching a surrogacy case is: “Who are the parents at birth under UK law?”. It may seem obvious but it’s easily overlooked.

As Nath’s article explains, the surrogate mother will always be the child’s mother at birth for nationality purposes.

If the surrogate mother is married, her spouse will be the child’s father, or second legal parent if she is married to a woman (except if that spouse did not consent to the procedure). If the surrogate mother not married, then the intended father will be the child’s father — provided there’s a genetic connection. If the intended father is not the child’s genetic father or if there’s no intended father, then the child will have no legal father from a nationality perspective. 

Next steps

Bearing in mind the above, you can establish next steps. If one of the child’s legal parents is British otherwise than by descent (most probably the intended father but it could theoretically be the surrogate mother or her spouse) then a child born overseas will be British at birth under section 2(1) of the BNA 1981 and entitled to a British passport. 

If the child is not British, consider whether he or she can be registered as British, by entitlement or at discretion. Regardless of the answer to that question, you should also find out if the child can obtain any other kind of passport. This can be helpful because:

  • Some kind of passport is needed to apply for UK entry clearance 
  • It may allow the child to enter the UK without obtaining advance entry clearance – for example, as an EU national before the end of 2020, or as a non-visa national (although not entering as a visitor, immigration officials will usually allow entry with a six-month stamp)
  • It may give the family the right to reside in a third country while a registration application is being processed (for example, where processing times are faster or where they can stay with close family members)
  • The child may qualify for a family permit under the EU Settlement Scheme or the EEA (Immigration) Regulations 2016.

As Nath’s article explains, the Home Office does make special allowance for surrogacy cases – but always remember your standard options too. In some cases, there will be various alternatives. 

What about getting a parental order?

Parental responsibility in the UK is transferred to the intended parents by way of a parental order. Immigration practitioners should have a basic understanding of the requirements of section 54 and 54A of the Human Fertilisation and Embryology Act 2008. Once a parental order is made, the child will become British by virtue of section 1(5) of the British Nationality Act 1981, read in conjunction with the Human Fertilisation and Embryology (Parental Orders) Regulations 2010 (SI 2020 No. 985). 

The problem is that this takes time — for example, the surrogate mother must give her consent at least six weeks after the birth — and the intended parents will often want to come to the UK before a parental order has been granted. That’s why the child’s nationality and immigration options at birth are so important.

Problem 1: What if the intended father is not British?

Mary and Jonathan are a married couple living in Manchester. They were both born in Nigeria and moved to the UK in 2004. They obtained indefinite leave to remain in 2010. Mary naturalised in 2013. Jonathan has no wish to naturalise.

Their son William was recently born in Nigeria to an unmarried surrogate mother, Amina, who is Nigerian. They used Jonathan’s sperm and a donor egg. Jonathan and Amina are named on the birth certificate. 

British nationality law states that William’s parents are Amina and Jonathan, who are both Nigerian. William is not British at birth. 

Option 1: Registration at discretion

Mary and Jonathan can apply for William to be registered at the Home Office’s discretion under section 3(1) of the 1981 Act, referring to the Home Office guidance document Registration as British citizen: Children. This sets out three scenarios in which a surrogate-born child will be registered as British. The third scenario is “where a woman (whether the child’s biological mother or not) falls outside the definition of ‘mother’ in the BNA 1981” but could otherwise have “passed on” her citizenship. 

Mary is British otherwise than by descent and so could have passed on British citizenship to William under section 2(1) if recognised as his mother. This would require evidence that Mary is recognised as William’s mother in his place of birth, for example, through a birth certificate or court order. Mary is not named on William’s birth certificate and so a Nigerian court order would need to be obtained. There is no specific wording for this. It merely has to state that Mary is recognised as Jonathan’s mother in Nigeria. 

Once registered as British, William would qualify for a British passport. 

Option 2: Entry clearance 

It’s very likely William is a Nigerian national at birth, as he was born in that country and Amina, Jonathan and Mary are all Nigerian. Mary and Jonathan can use this to apply for indefinite leave to enter for William under paragraph 297 at part 8 of the Immigration Rules. Amina would still be considered William’s mother and so the application would need to be made on the basis of one of the following two subparagraphs – or more likely, both as alternatives:

(e) one parent is present and settled in the United Kingdom or being admitted on the same occasion for settlement and has had sole responsibility for the child’s upbringing.

You would need to focus on the fact that Amina has had no involvement at all in William’s life since giving birth and that Jonathan has had sole responsibility for raising William (the fact this has been shared with Mary poses no problems).

The other relevant subparagraph of rule 297 allows the child entry clearance where:

(f) one parent or a relative is present and settled in the United Kingdom or being admitted on the same occasion for settlement and there are serious and compelling family or other considerations which make exclusion of the child undesirable and suitable arrangements have been made for the child’s care. 

Here you could focus on both Jonathan (as William’s parent) and Mary (as William’s “relative”). The “serious and compelling family or other considerations” would of course be the fact William was born through a surrogacy arrangement, and both intended parents live in the UK. 

You would of course need to show all other requirements of paragraph 297 were met, as per any other application. William would be granted indefinite leave to enter. 

Problem 2: What if the intended father is British by descent?

Ash and his wife Ria are a married British couple who have lived together in London for many years. Their daughter Anika was recently born in Ukraine through surrogacy. The surrogate mother Kateryna, is a divorced Ukrainian national.

Ria was born in the UK and so is British otherwise than by descent. Ash was born in India to a British father and so is British by descent. Ash and Ria are Anika’s biological parents and are named on Anika’s birth certificate.

British nationality law states Anika’s parents are Kateryna and Ash. Kateryna is Ukrainian. Ash is British but by descent only. This means Anika is not British at birth. 

Option 1: Registration by entitlement 

Anika may have a right to register by entitlement under section 3(2) of the BNA 1981. This is possible where a parent is British by descent and has resided in the UK for a period of at least three years some time before the child’s birth. This seems probable in Ash’s case.

In addition, Ash’s own father must have been British otherwise than by descent and Ash should have spent no more than 270 days outside the UK during the three-year period in question.

If Ash had not lived in the UK for three years, then Anika may still be able to register under section 3(2) on the basis she is stateless (children born in Ukraine are not Ukrainian without further family ties). 

Option 2: Registration at discretion 

Ash and Ria could consider applying for Anika to be registered at the Home Office’s discretion under section 3(1). As with William’s case above, the focus would be on the fact Ria is British otherwise than by descent and so could have passed on citizenship to Anika if not for the fact she did not give birth to Anika. In this case, the birth certificate naming Ria would suffice as evidence she is recognised as Anika’s mother in Ukraine. 

Options 1 and 2 are both submitted on an MN1 form, and both alternatives could be argued in the representations, provided appropriate evidence is enclosed. 

The process of gathering evidence, registering a child as British and then applying for a passport is fairly slow. Ash, Ria and Anika are likely to face at least three or four months in Ukraine, if not longer. It’s always worth considering alternatives, although they are unlikely on these particular facts.  

Problem 3: What if the surrogate mother is married or there’s no genetic connection with the British parent?

Federico and Kristoff are a married couple living in Cornwall. Federico is originally from Italy but naturalised as a British citizen three years ago. Kristoff is a Swedish citizen with pre-settled status.

Their twin daughters, Ana and Elsa, were born in the USA. The surrogate mother is Jacqueline, who is married to Kristoff’s best friend, Sven. Jacqueline is American and Sven is Swedish. 

The twins were created using a donor egg and Kristoff’s sperm. A pre-birth order was obtained recognising Federico and Kristoff as the legal parents of the twins, and they are named as such on the children’s birth certificates.

Under UK nationality law, Anna’s and Elsa’s mother is Jacqueline and their father is Sven. Neither parent is British and so they cannot acquire citizenship this way.

Option 1: Registration by discretion 

This example fits within the second surrogacy scenario outlined in the Home Office registration guidance for registration under 3(1), namely: “Where a man is not the biological father of the child and cannot meet the definition of ‘father’ in the BNA 1981”.

In this case, Federico is not the biological father of Anna and Elsa and so cannot meet the definition of father, even if Jacqueline were unmarried. As with William’s and Anika’s cases above, you would need to show the children were recognised as Federico’s daughters in the place they were born. In this case, Federico is named on the birth certificate. As such, the Home Office should register the twins as British. 

Option 2: US passports

Anna and Elsa could also / instead get American passports as they are US citizens at birth, irrespective of their parentage. As such, they may be able to enter the UK as non-visa nationals with a six-month entry stamp in their passports. Immigration officials usually allow surrogate-born children entry at the border on an exceptional basis.

This would be a much faster way for Federico and Kristoff to get home. Nevertheless, such entry is outside the Rules and is a matter of discretion. Intended parents need to understand it is open to an immigration official to turn them away in these situations.

Option 3: Entry clearance outside the Rules 

If Kristoff and Federico did not want to take this gamble, they could look at applying for a visa in advance instead.

Kristoff being Swedish, an EU Settlement Scheme (or EEA Regulations) family permit application springs to mind but is unlikely to work on this particular set of facts. Jacqueline is married and so neither Federico nor Kristoff will be treated as the father under UK law until a parental order is made in their favour. If Jacqueline were single, then Kristoff could sponsor such an application. 

In theory, an application under paragraph 297(f) could be attempted, with Federico as the sponsoring “relative”.

But on these facts, the more appropriate option would be an application “outside the rules” using the Home Office’s guidance on Inter-country Surrogacy and the Immigration Rules

Although extremely dated, this guidance should still be followed as far as possible, making allowance for legal changes over the last 11 years. The focus is on intended parents being able to show a parental order will be made in their favour, and this remains the case. At the time the guidance was written, this was only an option for married heterosexual couples, which is of course no longer the case. This makes for particularly confusing reading in cases of same-sex couples, as it refers only to the “commissioning male” and the “commissioning female”. I simply make common sense adaptations as far as possible. 

In short, such applications usually require you to show the following:

  • One parent is British / settled in the UK 
  • One parent is the child’s biological parent 
  • A parental order is likely to be made in favour of the intended parents 
  • How the requirements of paragraph 297 are otherwise met 

In this case, the application should focus on Federico, as Kristoff is not settled in the UK. The guidance makes allowance for situations where there is no genetic connection between the “commissioning female” and the child, regardless of whether the surrogate is married. It could be argued by extension that Federico should be accorded the same right. 

If successful, Anna and Elsa would be grated 12 months of entry clearance, with the assumption they would become British through Federico once parental orders were made.

Option 4: Other passport options 

Federico is Italian and Kristoff is Swedish (as indeed is Sven). It may be possible for Elsa and Anna to obtain Italian or Swedish passports. They could then enter the country in their own right as EU citizens prior to the end of December 2020 (at the time of writing). It’s certainly possible that thereafter they may be granted entry at the border on the same basis as non-visa nationals, as in option 2 above. This is speculation, though.

Conclusion 

I’ve have outlined some of the more common kinds of situations I have dealt with but every family brings its own new set of facts. Whatever the circumstances, it’s critical to ensure you have all the relevant details at the outset. This is easily overlooked in surrogacy cases, where there is so much information to absorb.

For immigration practitioners, surrogacy is not only emotionally rewarding. It can be an exciting challenge, as there are often multiple solutions to each situation. I have yet to come across a situation that cannot be resolved in some way – although intended parents do need to prepare for extended periods abroad. 

For more international surrogacy problem scenarios and solutions, see our advanced training course on the subject, created by the author and available to Free Movement members. The course contents are below.

Module 1 Surrogacy law and parenthood
Unit 1 What is surrogacy?
Unit 2 Definitions of parenthood under UK law
Unit 3 Parental orders and the family courts
Module 2 British citizenship
Unit 1 Automatic acquisition and registration by entitlement
Unit 2 Registration at discretion
Unit 3 Practicalities: registration and passport applications
Module 3 Entry clearance
Unit 1 Surrogacy and the Immigration Rules
Unit 2 Applications under paragraph 297
Unit 3 Applications outside the Rules for settled parents
Unit 4 Other routes into the UK
Module 4 Wrap-up and quiz
Unit 1 Five final tips
Unit 2 Quiz
Unit 3 Feedback form
Karma Hickman

Karma Hickman is an Associate Solicitor at Bishop & Sewell. She undertakes a broad range of immigration work for individuals. She has a particular interest in complex citizenship and European matters, and considerable expertise in family-related immigration cases, including international surrogacy and intercountry adoption.

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