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Surrogacy and the Immigration Rules

Surrogacy and the Immigration Rules is an interesting relationship. Surrogacy is a word that covers a variety of situations where, for whatever reason, a woman carries and bears a child on behalf of someone else. The woman who carries and bears the child is the “surrogate mother”. However, she can do this without being genetically related to the child. The sperm and egg necessary to create the embryo can come from donors and the embryo can be implanted into her. In such circumstances any resulting child may have no genetic connection with the surrogate mother or her husband, (if she has one).

This is a complex part of both family and immigration law, you should seek specialist legal advice. ICS Legal handles these applications, and our legal team can be contacted on 0207 237 3388 or you can email our team with your full matters on info@icslegal.com

It is vital to remember that no matter what the genetic make-up of the child, UK law sees the woman who carries and bears the child as the legal mother. If she is married at the time of her artificial insemination or the implantation of an embryo, UK law will see her husband as the legal father, unless it is shown that he did not consent to the implantation of the embryo or the artificial insemination.

This remains the case even where the surrogate mother is a foreign national residing abroad, because the interpretation of the Immigration Rules is in accordance with UK law and so it is UK law that will govern the definitions used. Even if the surrogate mother’s home country sees the commissioning couple as the “parents” and issues documentation to this effect, UK law and the Immigration Rules will not view them as “parents”. Only where the surrogate mother is single is there a chance of UK law viewing the sperm donor/commissioning male as the legal “father”.

Who are the Commissioning couple?

The “commissioning couple”, are the people who decide to enter into a surrogacy arrangement in order to engender a child for them to bring up. One of the commissioning couple may be unable to produce eggs or sperm, or even if they can produce them, the female partner may be unable to carry a child.

The commissioning couple may reach a private arrangement direct with the surrogate mother or by way of a clinic. Surrogacy arrangements are not enforceable as contracts and cannot be enforced in the UK courts by any of the parties concerned.

Surrogacy and Parental Responsibility
Under UK law, when a child is born to a surrogate mother, the parental responsibility for that child rests with the surrogate mother and, if she is married, with her husband unless it can be shown that he did not consent to the artificial insemination or implantation of the embryo.

Where the child was not conceived by those methods, there is a presumption that the surrogate mother’s husband is the father of the child. This presumption may be rebutted by evidence that the commissioning man is the genetic father. As the surrogate mother is recognised as the legal mother, section 30 of the Human Fertilisation and Embryology Act
1990 (HFE Act 1990) provides a procedure by which the commissioning couple can acquire parental rights.

The surrogate mother and the “legal” father must give full and free consent for the parental order. Such consent is not effective until the child is at least six weeks old, (see: section 30(6) of the HFE Act 1990), and exists to ensure that the surrogate mother is sure she has made the correct decision. There are other limits contained in section 30 in relation to obtaining parental orders.

Domestic Law: Regulations & Offences: Surrogacy Legislation
The Department of Health holds the lead responsibility for making law and policy on Surrogacy in the United Kingdom. The Human Fertilisation and Embryology Act, (HFE. Act 1990) applies to all of the United Kingdom and is the Act which regulates parental orders.

Other aspects of Surrogacy are regulated by the Surrogacy
Arrangements Act 1985. There are no international agreements or Conventions which regulate how surrogacy should be managed between countries so anyone considering entering into an inter-country surrogacy arrangement must remember that if they reside in the United Kingdom, they are subject to United Kingdom law and the definitions which underlie it. This is of vital importance as the definition of who constitutes “a parent” for the purpose of United Kingdom law affects whether a child born abroad as the result of a surrogacy arrangement, may be brought into the United Kingdom under the Immigration Rules.

The Surrogacy Arrangements Act 1985

This initial legislation was amended by the Human Fertilisation and Embryology Act in 1990. The Surrogacy Arrangements Act 1985 sought to outlaw profit-making agencies from assisting in the creation of  surrogacy arrangements. It makes any payment to third parties illegal and bans advertising in relation to surrogacy.

Section 2 makes it a criminal offence to make surrogacy arrangements on a commercial basis. No criminal offence is committed by either the surrogate mother or the commissioning couple if, between them, it is agreed that payments will be made to the surrogate mother. However any other person, company or agency that for payment negotiates, makes or otherwise assists in a surrogacy arrangement commits the offence.

The Surrogacy Arrangements Act 1985 was amended by section 36 of the Human Fertilisation and Embryology Act 1990 and section 59 of the Human Fertilisation Act 2008 (not yet in force). The Human Fertilisation and Embryology Act 1990.

The role of social services

When section 30 of the 1990 Act came into force in 1994, guidance was issued to Local Authorities and Health Authorities, (LAC(94)25), which explained how the regulations made under section 30(9), (which modified the adoption legislation), operated.

That guidance also requires Local Authority Social Services Departments to make enquiries when they are aware that a child has been, or is about to be, born as the result of a surrogacy arrangement in order to satisfy themselves that the child is not at risk as a result of the arrangement. The provisions of the Children Act 1989 permit the local authority to intervene if they consider the child is suffering, or is likely to suffer, significant harm. In those circumstances the local authority can seek a care order.

Parental responsibility

Where the commissioning couple wish to assume parental responsibility they may seek a Parental Order under section 30 of the 1990 Act (see paragraph 17 above). Any such order made by the court confers parental responsibility on them and extinguishes it in respect of anyone else. Until the making of the order the surrogate, (carrying), mother remains the legal mother of the child. The 1990 Act also contains complex provisions relating to the paternity of the child.

Given the complexity of this issue, prospective commissioning couples should carefully consider the likelihood of a resultant child being able to automatically gain British citizenship in this way, before they enter into a surrogacy arrangement. Where the child does automatically acquire British citizenship at birth, an application for a British citizen passport can be made on behalf of the child, at the nearest British Diplomatic Post in the child’s country of birth. Once
issued, the child will be able to travel freely to the United Kingdom with no need for entry clearance.

Where British citizenship is not automatically acquired, once paternity and/or parental responsibility is established, a child can be Registered as a British citizen. Registration under Section 3(1) of the British Nationality Act confers “British citizenship other than by descent” upon the child. This is the same status as if they had been born in the United Kingdom to a British citizen parent. This means that they can pass on British citizenship to any children they have.