Guidance

Guide 3 for intended parent(s): return to the UK

Published 22 June 2022

This guide is intended to assist intended parent(s) to understand and plan for the process of undertaking an international surrogacy arrangement. Please note that the information in this guide has been simplified for ease of understanding, and some technicalities are not discussed in detail.

This information is correct at the time of publication. Its aim is to make intended parent(s) aware of issues that may arise, and to help them plan accordingly. However, it is not a substitute for professional or legal advice, which should be sought where appropriate.

Key considerations

• United Kingdom law does not determine parenthood on the basis of birth certificates or court orders from other jurisdictions. (see section 1 below)
• the intended parent(s) therefore need to be aware that they may not be the legal parents of the child under United Kingdom law and therefore must apply for a Parental Order or adoption order in the United Kingdom. (see sections 4 and 5 below)
• in order to be able to travel home with the child, the intended parent(s) must acquire the necessary travel documents. This can take several months and depends on the circumstances of the individual case, and especially the child’s nationality. (see sections 2 and 3 below)
• there are many documents that intended parent(s) will need to obtain from the surrogate, surrogacy agencies, and foreign authorities in order to establish (or prove) the child’s nationality, to obtain travel documents for their child, and to establish their parenthood in the United Kingdom. These are set out under the subheadings “Required documents”.*

*These lists provide examples of the documents that may be required. The exact requirements are subject to change and should be checked at the time of submission.

1. Legal parenthood

Under United Kingdom law, being named as a parent on a birth certificate from another jurisdiction does not always mean that you are the legal parent. The United Kingdom will always apply its own law on parenthood, no matter where in the world the surrogacy took place, or which nationality those involved in the arrangement have.

Intended parent(s) therefore must be aware that they will not automatically be the legal parents of the child under United Kingdom law. This means that they will not be the legal representatives and will not be able to make decisions on behalf of the child.

Thus the intended parent(s) in most cases must seek a Parental Order when they return to the United Kingdom, in order to have the legal parenthood recognised under United Kingdom law. If this step is not undertaken, the surrogate (and her husband, if applicable) will remain the legal parents of the child in the eyes of the United Kingdom legal system and this may lead to problems in engaging with medical and educational establishments later in the child’s life. Obtaining a Parental Order is therefore strongly recommended.

1.1. Legal mother of the child

Under United Kingdom law, the legal mother of a child at birth is always the person who gives birth, irrespective of whose genetic material has been used. Therefore, the surrogate will always be the legal mother at the time of birth.

This means that parenthood will have to be transferred to the intended parent(s) by a court order in the United Kingdom (on which see sections 4 and 5 below).

1.2. Legal father of the child

The situation of the legal father is more complicated and depends on the marital status of the surrogate:

1.2.1. Married surrogate

If the surrogate is married to a man, then under the law of the United Kingdom her husband will also be a legal parent of the child. This will be the case no matter whose genetic material has been used in the surrogacy arrangement.

1.2.2. Unmarried surrogate

If the surrogate is not married to a man at the time of birth, the intended father will be considered the legal father under United Kingdom law, provided that his sperm has been used to conceive the child.

Required documents:

• birth certificate for the child
• documentation of the marital status of the surrogate (either marriage certificate, divorce certificate or an express written declaration by the surrogate that she was unmarried at the time of birth; the latter should be translated and notarised)
• proof that the intended father’s sperm (if applicable) was used

2. The child’s nationality

The child’s nationality will depend on legal parenthood at birth (on which see section 1 above).

This guide covers British nationality only. The child may also qualify for nationality of the country in which they were born: intended parent(s) should seek legal advice on this issue.

2.1. Automatic citizenship: unmarried surrogate, where the British intended father’s sperm has been used

Where the surrogate is not married to a man, then the intended father is the legal father from birth if his sperm has been used in the surrogacy arrangement (for example evidenced by a DNA test, or by his registration on the birth certificate). In this case, as long as the intended father is a British citizen (otherwise than by descent)*, the child will be regarded as a British citizen from birth and can be issued with British travel documents.

Required documents:

• birth certificate for the child
• express written declaration by the surrogate that she was not married to a man at the time of birth (or documents regarding a divorce, where relevant), which should be translated and notarised
• proof that the intended father’s sperm was used

*A ‘British citizen by descent’ is a person born outside the United Kingdom whose British nationality was acquired because one or both of their parents was a British citizen. In contrast, generally speaking, a ‘British citizen otherwise than by descent’ is a British citizen who was born, adopted, naturalised or, in most cases, registered in the United Kingdom or a qualifying territory. While a ‘British citizen otherwise than by descent’ is someone who can pass their citizenship onto a child born overseas, a ‘British citizen by descent’ cannot automatically pass on British citizenship to any child of theirs who is born abroad.

2.2. Citizenship by registration: Married surrogate, non-British intended father, or where the sperm of the intended father was not used

Where the surrogate is married to a man, her husband will be considered the legal father under United Kingdom law. In such cases, the child does not acquire British citizenship automatically from birth via the intended father.

Likewise, the child will not be recognised automatically as a British citizen at birth:

• if the sperm of the British intended father was not used in the surrogacy arrangement (even if the surrogate is unmarried); or
• if the intended mother is a British citizen, but the intended father is not

If the intended parent(s) are a single woman, or a same-sex female couple, then likewise the child will not be recognised automatically as a British citizen at birth.

While citizenship is not automatic in these cases, the child can still be recognised as a British citizen by virtue of the surrogacy arrangement itself. To achieve this, the intended parent(s) will need to “register” the child as a British citizen with United Kingdom Visas and Immigration (UKVI) using Form MN1. This registration must be done before any travel documents (such as passports) can be applied for.

This registration is at the discretion of the British authorities under the British Nationality Act 1981 section 3(1). Nevertheless, the process can take some months. This inevitably delays proceedings as British travel documents can only be applied for after “registration” when the child is a British citizen. Intended parent(s) should be prepared to stay in the country where the child is born until the registration certificate and travel documents have been received and they can travel home.

Required documents:

• birth certificate for the child
• the surrogacy agreement signed by all parties
• marriage certificate of the surrogate, where applicable
• proof that the intended father’s sperm was used, where applicable
• a completed Form MN1
• consent to the registration from all parties – intended parent(s), surrogate mother, surrogate mother’s spouse, where applicable
• referee declarations

2.3. Citizenship following a Parental Order

Where the child has not obtained British citizenship through one of the means above, they will nevertheless gain British citizenship when a Parental Order or adoption order is made in the United Kingdom. The child will become a British citizen from the date of the order as long as one of the intended parent(s) is a British citizen. However, such an order can only be made once the child is in the United Kingdom.

For more information on nationality in cases of surrogacy see Nationality Policy, Surrogacy.

3. Travel documents

For children to be able to travel to the United Kingdom with the intended parent(s), they need either a United Kingdom passport or entry clearance for the United Kingdom.

In a crisis situation the Foreign, Commonwealth and Development Office (FCDO) will work with HM Passport Office (HMPO) to support intended parents and surrogate children as far as possible.

3.1. When the child is a British national by descent – United Kingdom passport

If the child is a British citizen by descent (see section 2 above) – either automatically, or through registration – the intended parent(s) need to apply for a United Kingdom passport for the child.

Intended parent(s) should be aware that this process may take several months. During this time, the child will not be able to leave the country. This may mean that the intended parent(s) may also need to stay in that country for this time.

It is therefore of vital importance that intended parent(s) plan for this lengthy stay, including taking sufficient time off work, and having adequate resources to pay for accommodation and other expenses while they are overseas.

Required documents:

• all documents required for proof of British nationality (see section 2 above)
• a letter from the surrogacy agency, confirming that the child is the result of a surrogacy agreement, the details of the surrogacy agreement and evidence of the surrogacy treatment
• specific medical evidence proving that the gametes of one or both intended parent(s) were used, where applicable
• any pre or post-birth court orders issued in the country where the surrogacy procedure and/or birth took place
• a document signed by the surrogate (and her husband, if relevant) that she consents to the intended parent(s) applying for a passport and travelling with the child. Importantly, this document is separate from the consent to the Parental Order (on which see sections 4.2.7 and 5 below). It needs to be translated and notarised
• documentation confirming the marital status and identity of the surrogate mother
• the child’s birth certificate
• proof of the identity of intended parent(s) (for example, passport or birth certificate)
• proof of the marriage or civil partnership of the intended parent(s) (if this is relevant to the application)

3.2. When the child is not a British national by descent: entry clearance

If the child is not a British national by descent, then the intended parent(s) will need to apply for an entry clearance visa into the United Kingdom for the child. This is granted on a discretionary basis, “outside the Immigration Rules”. This may require travel documents, such as a non-United Kingdom passport.

Intended parent(s) should seek specialist legal advice in the United Kingdom on the most appropriate process for bringing the child to the United Kingdom.

As with acquiring a British passport, applying for an entry clearance visa can take several months, and the intended parent(s) must be prepared to stay for that time with the child in the country where the surrogacy took place. They should make preparations for such a stay.

Required documents:

• a letter from the surrogacy agency confirming that the child is the result of a surrogacy agreement, the details of the surrogacy agreement and evidence of the surrogacy treatment
• a document signed by the surrogate (and her husband, if relevant) that she consents to the intended parent(s) applying for the entry clearance visa and travelling with the child. Importantly, this document is separate from the consent to the parental order (on which see sections 4.2.7 and 5 below). It needs to be translated and notarised
• proof of a genetic relationship between the child and at least one of the intended parent(s)
• confirmation that the intended parent(s) will apply for a Parental Order from the courts in the United Kingdom when they return to the United Kingdom (on which see sections 4 and 5 below)

For further information see intercountry surrogacy and the immigration rules.

4. Transferring parenthood: the Parental Order

A Parental Order is the primary way to transfer parenthood from the surrogate to the intended parent(s). If a Parental Order is not available – for example, where the relevant criteria have not been met – then intended parent(s) may need to consider alternative options such as an adoption order. Specialist legal advice should be sought in this regard.

4.1. Why do you need a Parental Order?

A Parental Order is necessary to remove legal parenthood from the surrogate, and for intended parent(s) to be recognised as the legal parent of their child born through surrogacy. Even if the birth has been registered overseas, and legal parenthood recorded there (either in a birth certificate or through a court order) this will not be recognised in the United Kingdom, even if a United Kingdom passport has been issued. Intended parent(s) should therefore seek a Parental Order in order to be the legal parents according to United Kingdom law.

4.2. Criteria that must be met

In order to obtain a Parental Order, there are several criteria that must be met:

4.2.1. Genetic relationship

In order for the Court to make a Parental Order, there must be a genetic relationship between the child and at least one of the intended parent(s). If there is only one intended parent, there must be a genetic relationship between that person and the child.

If there is no genetic relationship between at least one of the intended parents and the child, it would be necessary to seek an alternative legal avenue for recognition of their relationship – for example, an adoption order.

4.2.2. Age criteria

Intended parent(s) must be over the age of 18 at the time of making the Parental Order.

4.2.3. Marital status

Intended parent(s) can apply for a Parental Order individually, or as a couple.

If they are applying as a couple, they must either be married, in a civil partnership or be “in an enduring family relationship”. They cannot be within the prohibited degree of relationships – meaning that they cannot, for example, be brother and sister, mother and child, etc.

Single individuals can apply for a Parental Order if they are genetically related to the child.

4.2.4. Sexual orientation

United Kingdom law allows Parental Orders to be made in favour of both opposite-sex and same-sex couples. Sexual orientation is not relevant to the making of the order.

4.2.5. Timing of application

The legislation states that intended parent(s) must apply for the Parental Order within six months of the child’s birth. However, the courts have interpreted this in a lenient manner, and have consistently allowed late applications.

4.2.6. Domicile in the United Kingdom

To obtain a Parental Order, either or both of the intended parent(s) must be domiciled in the United Kingdom at the time of making the application, and at the time of making the order.

Domicile is a difficult legal concept, which relates to where the intended parent(s) have their permanent home. It is different from the place of habitual residence, and does not necessarily correspond to citizenship. Intended parent(s) should seek legal advice if they are unsure of their country of domicile.

4.2.7. Consent to the order

In order to make a Parental Order, the Court must be satisfied that the surrogate (and her husband, if relevant), has freely, and with full understanding of what is involved, given unconditional consent to the making of the order.

The surrogate’s consent must be given more than six weeks after she has given birth. Consent given before that time will not be valid.

The consent of the surrogate (and her husband, if relevant) should be confirmed by using Form A101A.

Intended parent(s) must also give notice to the surrogate (and her husband, if relevant) of the application for the Parental Order. This should be confirmed by completion of Form C52.

4.2.8. Payments

In order to transfer parenthood to the intended parent(s) through a Parental Order, the court will be required to authorise any money that has been given or received in relation to the arrangement, the transfer of care of the child, or the making of the Parental Order. The courts have consistently approved payments made to foreign surrogates and surrogacy agencies.

For this authorisation to occur, however, all payments made to the surrogate and the surrogacy agency must be documented in detail and presented to the court. Intended parent(s) must therefore provide a complete, itemised and detailed invoice or list of payments, which sets out the various sums that have been paid in relation to the surrogacy arrangement, especially all those received by the surrogate. This should include medical expenses and all other expenses and payments.

4.2.9. The best interests of the child

As with the authorisation of expenses, in deciding whether to make a Parental Order, the court must be guided by the best interests of the child as the paramount consideration.

In coming to this decision, courts will be assisted by a report from a social worker, who will evaluate the intended parent(s), the child, and their living situation. This person is called the Parental Order Reporter (see section 5.2 below).

The courts have made clear that it will rarely be in the child’s best interests to refuse to recognise the legal parenthood of the intended parent(s), especially where they are already living together as a family.

See: Human Fertilisation and Embryology Act 2008

5. The Parental Order process

5.1. Application to the court

You must fill in an application for a Parental Order (Form C51) and send this to the family court. You will also need to provide the child’s full birth certificate and pay the court fee of £232 (as of January 2022).

The court will set a date for the hearing and issue you with a form that acknowledges that you have made an application (Form C52), which you must give to the surrogate (and any other legal parent) to fill in and sign.

The surrogate (and any other legal parent) must also agree to the Parental Order (Form A101A).

As the court papers need to be served on the surrogate (and her husband, if relevant), the surrogate must be directly contactable throughout the duration of the court process. For this purpose, the intended parent(s) must be provided the home address of the surrogate (and her husband, if relevant). It is not enough to provide the address of the surrogacy agency: all these papers must be received directly by the surrogate (and her husband, if relevant). It is not necessary for the surrogate (or her husband, if relevant) to actively participate in the proceedings if they do not wish to do so, but there must be an acknowledgement that the papers have been received and a confirmation that they do not wish to participate in the proceedings or challenge the making of the Parental Order. A failure to do so may mean that the intended parent(s) are not able to gain recognition of their legal parenthood in the United Kingdom.

5.2. Appointment of a Parental Order Reporter

Once the application has been lodged, the court will ask Cafcass (Children and Family Court Advisory and Support Services) to appoint a “Parental Order Reporter”. This is a qualified social worker, whose role will be to consider the child’s best interests, and represent these to the court.

The Parental Order Reporter will investigate the circumstances of the case in line with the criteria for making a Parental Order. To do so, they will usually meet with you, and see you with your child, to find out about your child’s journey so far, and understand your family structure and the child’s place within it.

They will also investigate whether the surrogate (and any other legal parent) consents to the making of the Parental Order.

This typically takes between eight to twelve weeks.

The Parental Order Reporter will provide a “Parental Order Report” to the court which will recommend whether a Parental Order should be made.

For further information see: https://www.cafcass.gov.uk/grown-ups/parents-and-carers/surrogacy/

5.3. Court hearing

The court will usually list an initial hearing to ensure that the required evidence for the making of a Parental Order is available. The court will ask for a statement setting out how the surrogacy came about, as well as supporting documents and evidence to show how you fulfil the criteria for a Parental Order to be made.

It is important that the information intended parent(s) provide at this stage is as comprehensive as possible. If there is anything missing, the court may request further evidence, which may mean delays in the proceedings.

The evidence needed will vary from case to case, but may include:

• evidence of the genetic connection between one of the intended parent(s) and the child
• a letter from the surrogacy agency giving details of the surrogacy arrangement
• evidence of the surrogacy treatment, such as a letter from the clinic where it took place
• documentation regarding the surrogacy arrangement including any legal agreements – signed by all parties
• medical evidence if the surrogacy arrangement has involved fertility treatment; and/or documentation from the surrogacy organisation about the circumstances of the surrogacy
• the child’s birth certificate
• any pre or post-birth court orders issued in the country where the surrogacy procedure and/or birth took place
• if the intended parent(s) are a couple, evidence of their relationship (for example, a marriage or civil partnership certificate, or other evidence of being in an enduring family relationship)
• when your child was handed into your care and where you have been living with them since then
• evidence of the consent of the surrogate (and any other legal parent) to the Parental Order (Form A101A).This should be accompanied with a full notarised translation if the surrogate’s first language is not English
• bank statements and receipts showing payments made in relation to the surrogacy arrangement, as well as an explanation of what these were for

The court will consider this evidence and, at the final hearing, will come to a decision as to whether to grant a Parental Order.

For further information see: https://www.cafcass.gov.uk/grown-ups/parents-and-carers/surrogacy/

6. Parental leave

Following a surrogacy arrangement, intended parent(s) may be eligible for adoption leave for up to 52 weeks. Only one intended parent is eligible for such leave: the partner who does not take adoption leave may be able to get paternity pay and leave. Intended parent(s) may also be able to take up to 50 weeks of shared parental leave.

If the intended parent(s) are not eligible for paid leave, they may be able to take unpaid parental leave.

See:

• https://www.gov.uk/adoption-pay-leave
• https://www.gov.uk/paternity-pay-leave
• https://www.gov.uk/parental-leave
• https://www.gov.uk/shared-parental-leave-and-pay

Disclaimer

This information document has been produced as a general overview for those considering surrogacy. Some of the information has been simplified for ease of understanding, and some technicalities have not been discussed in detail. The information does not address the specific requirements of individual cases and is provided for informational purposes only.

The information does not in any way constitute legal advice and should not be relied on or treated as a substitute for specific advice relevant to the particular circumstances of a case. We recommend that appropriate legal advice is taken from a qualified lawyer before taking, or refraining from taking, any action in a case.

The Foreign, Commonwealth and Development Office and Cambridge Family Law accept no responsibility for any errors, omissions or misleading statements in this document, nor for any loss which may arise from reliance on the information provided.

The document contains hyperlinks to further information sources on external or third party internet sites – for the avoidance of doubt, the Foreign, Commonwealth and Development Office is not responsible for the content, safety or security of any external or third party internet site.