International surrogacy (UK law)

Many parents cross borders for surrogacy. Since the law does not join up internationally, managing the legal issues can often feel like assembling a jigsaw.

If you are British or if you live in the UK, you will need to think about managing UK law as well as the law in any other country involved.

What countries allow surrogacy?  Where can I find a surrogate? 

The USA is the most common, secure and established international surrogacy destination.  The law is dealt with on a state-by-state basis, but most US states have a framework to recognise the intended parent/s as the child’s legal parent/s from birth, as well as rigorous processes to ensure surrogacy is safe and ethical.

The second most popular surrogacy destination for UK parents has historically been Ukraine (although should not be considered at the moment due to the war).  Ukraine has a legal framework which supports surrogacy for different-sex married couples only.

Other destinations where the law supports and recognises surrogacy, but where surrogacy takes place for UK parents in much smaller numbers, are Canada (open to all family forms), Georgia (only available to different-sex couples) and Greece (only available to different-sex couples and single mums).

There are other countries where surrogacy does take place but in the absence of a clear legal framework.  Currently this includes Mexico, Colombia and Nigeria, but in the past we have seen similar experience in India, Thailand, Nepal and Cambodia (all of which being countries in which surrogacy was prohibited by the government very suddenly).  These are much riskier options.

You may also be considering surrogacy in a country with which you have a personal connection, or where you have a friend or family member who has offered to be your surrogate.  In some there is a legal framework for surrogacy but only for intended parents who are resident or domiciled there (such as the UK and South Africa).  Elsewhere, surrogacy might be prohibited or there might be no law about it at all.  Either way, you will need careful legal advice to make a surrogacy arrangement work safely.

Legal questions to ask in the country where your child will be born

Is surrogacy legal for me (and my surrogate) in that country?

Are support and matching services legal and are they regulated?

What legal process do I need to follow? Is the legal process enshrined in legislation? Is it well established?

What will go on my child’s birth certificate?

Will my child be born a national of that country and can I get a passport for them?

Is the person advising me legally qualified and giving me independent advice separate from the clinic or surrogacy program?

Securing your legal parenthood in the UK

Even if you are your child’s legal parent/s in the country where they are born (and are recorded on the birth certificate), in the UK your surrogate and her spouse will be your child’s legal parents. If you want to secure your family’s legal status in the UK you will need to make a post-birth court application to the family court in the UK.

Most UK parents apply for a parental order, which is the legal solution designed to resolve parenthood in surrogacy cases. It is a legal remedy available to parents living in the UK and some British parents living overseas.  At the end of the process the court makes an order which triggers the issue of a British birth certificate for your child naming you as the parent/s.

Find out more about parental orders.

If you do not qualify for a parental order, perhaps because you do not have a biological connection with your child or because you cannot satisfy the domicile criteria, you may be able to apply for a UK adoption order, or another type of order, instead.

Find out more about adoption orders following surrogacy.

British nationality and passports for surrogate babies

Understanding what nationality status your surrogate child will have, what documents you need to obtain to cross international borders and how long it will take, is a key part of planning any international surrogacy arrangement.

Bringing a child born through surrogacy home from the USA or Canada

If your child is born through surrogacy in the USA, he or she will be born an American citizen and you can typically obtain a US passport promptly after the birth.  The same is true in Canada.  Although there is technically no right to admission on arrival in the UK if a US or Canadian citizen is not travelling as a visitor, in practice UK border authorities routinely admit surrogate children with US and Canadian passports. This gives British parents flexibility to travel home quickly and then to decide whether to make an immediate application for a UK passport or to wait until their parental order is granted.

Bringing a child born through surrogacy home from elsewhere in the world

In other countries (such as Ukraine and Georgia) most British parents need to apply for a UK passport in the country of birth before they can travel home (unless other routes are available, for example if you have other nationalities). It is important to plan carefully, to make the correct application as soon as possible after the birth, and to be prepared for a stay in the birth country (likely to be at least 3-6 months if you are relying on getting your child a UK passport to travel).

Applying for your surrogate child’s UK passport

If you have obtained a parental order (or UK adoption order) from the family court and either of you is British, the application for your child’s UK passport should be straightforward.

If you don’t have a parental order, the law and the process is much more complex.

Is your child British? It is possible that your child was born British according to the British Nationality Act 1981 but in many surrogate situations this is not the case, for example if the surrogate is married and/or if the biological father is not British or is British by descent.  If your child was not born British, you may be able to make an application to the Home Office to ask for your child to be registered as a British citizen using the Home Secretary’s discretionary power and applying its policy on surrogacy.  This application has to be granted before you can apply for a UK passport, and it can take many months.

How do I apply for a UK passport? You will need to disclose the surrogacy circumstances and send extensive supporting documentation, including consent from your surrogate, if you are applying for a UK passport for your child and do not have a UK parental order.

Emergency passport applications

Emergency passports are intended to be temporary replacement passports, rather than to offer a quicker route to getting a child’s first UK passport. There is some history of them being issued for surrogate babies (for example at the height of COVID travel restrictions and during the Ukraine war) but they are not routinely available for children born through surrogacy unless there is a genuine and unforseen emergency.

Non-UK parents coming to the UK for surrogacy

The UK is not generally a surrogacy destination country for non-UK parents, since you can only get a parental order if one or both of the intended parents is ‘domiciled’ in the UK and because there is generally a shortage of surrogates.  However, some non-UK parents do conceive with surrogates in the UK, most commonly where a friend or family member based in the UK acts a surrogate. All such arrangements need very careful legal planning.

Depending on the circumstances, you might need the permission of the UK court to take your child out of the country.  In Re G (surrogacy: foreign domicile) 2007, a Turkish couple conceived a child with a British surrogate and was ultimately permitted to take the child to Turkey for adoption there.

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