18 Aug 2009 Parental Rights and Immigration & Citizenship Issues for Intended Parents from the U.K. Working with Surrogates from the U.S.A.

Parental Rights & Immigration/Citizenship Issues For Intended Parents from the U.K.
Working with Surrogates from the U.S.A.

Introduction

Since late 2008, there has been increased attention paid to the issues affecting intended parents from the U.K. upon their return home with a child born through surrogacy in the U.S., so we’d like to address that here.

First and foremost, it is very important that prospective U.K. intended parents seek the advice of an experienced assisted reproduction lawyer in the surrogate’s birth state, and retain legal counsel in the U.K. before moving forward with a surrogacy arrangement in the United States.  It also appears that the U.K. intended parents should consider being matched with a single surrogate rather than a married surrogate, however counter-intuitive that sounds (see discussion below under “Naturalizing the Child as a U.K. Citizen” and to go through an additional U.K. parental order process to confirm their parental rights once they’ve returned to the U.K.

Although the U.K. statutes governing this area have been on the books since 1985 and 1990, a 2008 high court ruling and recent media coverage has changed things. The High Court ruling in the case of In Re X and Y in December 2008, involving U.K. intended parents trying to return home after their child was born in the Ukraine, and a number of surrogates from India in high-risk multiples pregnancies with complications who came to the U.K. for free healthcare, resulted in increased scrutiny of foreign surrogacies from the U.K. media and U.K. government.  The Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 1990 (HFEA), recently amended in 2008, are the U.K. laws which relate to surrogacy and parental rights in the U.K.

Surrogacy Arrangements Act: (new link coming soon)

Human Fertilisation and Embryology Act 1990:
http://www.opsi.gov.uk/Acts/acts1990/ukpga_19900037_en_1

While these statues have been in effect for quite some time, following the ruling In Re X and Y case and recent events gaining media attention, the attention to and awareness of these statutues has increased.

Summary of the U.K. Law & Position on Surrogacy

Surrogacy Arrangements Act:  Under the Surrogacy Arrangements Act, a surrogacy agreement is not enforceable in the U.K. and it is prohibited for a third party to broker a "commercial surrogacy" arrangement.  Therefore, current best practice is to categorize/characterize payments to the surrogate as living expense reimbursements similar to an adoption or to arrange an unpaid surrogacy.

Human Fertilisation and Embryology Act 1990 (HFEA):  Even though the surrogacy arrangement would be lawful in the United States, the U.K. law will govern the parental establishment following a surrogacy, as the HFEA specifically applies to surrogacies within and outside of the U.K.

Under the HFEA, a surrogate would be legally considered the “mother” of the child and has an absolute right to object to parental rights being given to someone else even if the intended parents and surrogate have obtained a parental order in the U.S.  The surrogate may provide her consent; however, during the course of the intended parent’s application for a parental order in the U.K. (if the surrogate is married, her husband must provide his consent as well).  Once the surrogate gives her consent under U.K. law, the intended parents can obtain their U.K. parental order (provided other requirements are met as well). Therefore, the intended parents should make an application to the U.K. court, submit the necessary consents, and obtain a U.K. parental order, because the surrogate (and the surrogate’s husband if she’s married) will not be deemed to have fully relinquished her (their) rights until a U.K. parental order is in place.

U.K. Parental Order Process

As part of the U.K. Parental Order application process, the High Court will review the surrogacy agreement and will review the U.S. parental order as “expert evidence from the surrogate country.”  A U.S. court order of parental rights will not carry full (or possibly any) legal weight; although, the High Court may consider it, if for nothing else, to determine whether the process that the intended parents completed in the U.S. is considered legal in the United States.

In reviewing the surrogacy agreement, the High Court will consider the underlying financial arrangement. As mentioned above, U.K. law prohibits compensation and only permits payment of expenses reasonably incurred. However, the court, upon review, can retroactively allow reimbursement which goes beyond this so long as it is not disproportionate (in the court’s eyes). The High Court will also require, as mentioned above, consents from the surrogate and her husband if she is married.  Under U.K. law, the surrogate cannot give her consent until six (6) weeks after the birth (this is considered a “cooling off” period for careful and full reflection of the “rights” she is perceived to be giving up). A surrogate's husband does not have to wait six (6) weeks to provide his consent.

Very important: The application for a parental order must be lodged within 6 months of the birth. This time limit cannot be extended. The High Court (and these cases are typically heard in London) will typically schedule a hearing and issue its order anywhere between 3 and 9 months from the date of lodging the application.

Who can apply for a parental order?

Under the HFEA and recent amendments to the HFEA, married couples, heterosexual couples who are not married and same-sex couples whether or not they are in a civil partnership (U.K. civil union) can apply for a U.K. parental order, but at least one of the Intended Parents must be domiciled in the U.K. The recent amendments to the HFEA, which take effect on April 6, 2010, expanded application to unmarried heterosexual couples and same-sex couples, and there is a provision allowing for retroactive applications for a parental order for these couples (which is an important step forward since the HFEA otherwise contains no provisions for an extension of the time limit (6 months) to apply for a parental order).

Single parents cannot apply for a U.K. parental order. Single parents will need to adopt or may be able to apply for what’s called a “residence order”, although it really depends on the situation: If the single parent is a man whose sperm has been used and the surrogate is not married, he would not need to do anything further (but technically he would share parental responsibility with the surrogate without further order of a court on the issue of his parental rights).

In summary, we strongly recommend that intended parents returning to the U.K., make plans to apply for a U.K. parental order upon their return. U.K. intended parents should be speaking with experienced attorneys in the U.K. as early as possible in their surrogacy process, for advice that is specific to their situation and for information on estimated costs of the legal process in the U.K. (which could range from £10k to £50k).

Immigration and Citizenship Issues

Another and potentially more pressing issue for U.K. intended parents are the immigration and citizenship issue. This may not be so apparent at first. First and foremost, all intended parents from other countries should speak to a local immigration attorney as early as possible in their surrogacy process to educate themselves on how to prepare to return home and naturalize their child.

A child born in the U.S. is automatically a U.S. citizen and can obtain a U.S. passport for the purpose of flying home upon the presentation of a completed passport application and the child’s birth certificate. The recent increased scrutiny and awareness of foreign surrogacies, however, has caused immigration officials at Heathrow to start asking questions of people returning to the U.K. with a child that was born in another country and, in some cases, detaining them or prohibiting their re-entry.

Some intended parents (straight couples and single mothers) may be able to simply re-enter the U.K. with the child on a U.S. passport without any questions at customs.  However, if the intended parents are a same sex couple, or a single male, there may be more questions by the customs agent, so preparation is essential.  All new U.K. intended parents through surrogacy must be prepared to state their plans to naturalize their child and will have a limited amount of time to do so once they return.  If the intended parents are prepared, have spoken to local counsel and have appropriate U.S. documentation with them upon their return to the UK (birth certificate, court order, U.S. passport for the child, etc.), then the likelihood of being detained or prohibited re-entry is much lower.

Naturalizing the Child as a U.K. Citizen

Technically, because U.K. law requires a U.K. parental order, and this order cannot be applied for until returning to the U.K. acquiring U.K. citizenship for the child prior to the return home could be problematic (unless the U.K. Home Office or the local consulate has given a discretionary or automatic grant of citizenship depending on the circumstances).  If the surrogate is not married, and an intended father’s sperm was used and he is a U.K. citizen, then U.K. citizenship should be fairly automatic and routinely given upon return (either automatic citizenship or citizenship by descent), although there are some exceptions.

However, if the surrogate is married, U.K. law presumes the surrogate’s husband to be the father, therefore, the only way to bring the child in to the U.K. legally is with discretionary leave of the U.K. Home Secretary, which can take a long time to get and will probably be conditional on obtaining a U.K. parental order within 12 months (which is not guaranteed, e.g. if the surrogate then refuses to consent or the High Court does not grant the parental order). One other possibility is to apply for temporary entry clearance, which might or might not be granted and would likely be conditioned upon obtaining a parental order. In practice, the question may be one between going back to the U.K. pretty easily and being stuck abroad for a lengthy time…all based on whether the surrogate is single or married.  Also, consider that if for some reason the U.K. parental order is not granted at least the intended father (or one father in a same-sex couple) automatically “qualifies” as the child’s father under U.K. law if the surrogate is not married.

Conclusion

While in the past many couples may have re-entered the U.K. with their child (on a U.K. or U.S. passport) and not obtained a U.K. parental order, doing so may give rise to potentially serious complications, including but not limited to: government intervention; the surrogate making a claim for parental rights; the child’s rights of succession/inheritance may be challenged; and child custody determinations pursuant to a divorce may become more complicated and protracted.

The U.K. courts have not yet fully explored whether to give full faith and credit (comity) to foreign court judgments (in the In Re X and Y case there was no formal court process in the Ukraine to establish parentage as there would be in most U.S. states). As more U.K. parental order applications are filed, and the U.K. High Court provides additional guidance in this area, there may be further updates to the above information, but in any event, you should seek current advice from legal counsel in the U.K. and the U.S. regarding your specific situation at any given time. We hope that family formation through surrogacy in the U.K. evolves as it has in much of the United States.