Indian surrogacy for British parents – what’s the law?

Following prominent Indian surrogacy stories in the Telegraph and Evening Standard, Natalie was interviewed on BBC Radio this afternoon to explain the law.

In the absence of regulation, a commercial surrogacy industry in India has boomed over the last few years, with many Indian fertility clinics now offering surrogacy packages to foreign intended parents at a cost of around £20,000.  Indian law allows intended parents to enter into a binding contract with a surrogate mother, and Indian officials register the intended parents on the Indian birth certificate.

But the law is not as simple as it seems if you are a British parent.  For UK legal purposes, the parents of a child born through surrogacy are the surrogate mother and, if she is married, her husband.  Regardless of what the Indian birth certificate says, you will not be recognised as parents and this means that your child may well be born ‘stateless’ without any right to a passport anywhere in the world.  You will also have no status as the parents of your child when you come back to the UK.

There are solutions – a discretionary application to the British High Commission to give a British passport, and an application to the family court for a parental order which ultimately gives a British birth certificate.   However, it is important to be well prepared, and to be very careful about the ethics and safety of what you are doing, given the lack of regulation in India.

Despite the sudden media coverage, none of these issues are new.  In a landmark case Re X and Y in 2008, the High Court warned of the dangers of international surrogacy after twins born through a Ukrainian surrogacy arrangement were born ‘marooned stateless and parentless’ by the conflict between UK and Ukrainian law.  This was the very first UK case to ratify a foreign surrogacy arrangement, and it has been followed by many others over the past four years.  Exactly the same issues apply in Indian surrogacy cases, of which we have dealt with many.  No parental orders have yet been refused, although the court does look at every situation carefully to ensure there is no exploitation and to protect the welfare of the child.