The Independent recently reported that the number of surrogate babies registered in Britain has risen by 255% over the last 6 years, a total of 167 in 2013, although this may just be the official number hiding an even greater growth in surrogacy arrangements. We are certainly seeing a significant rise in surrogacy cases and Judges are increasingly grappling with the difficult legal issues which arise from this evolving route to parenthood as outlined in our recent surrogacy case updates.
UK Visas and Immigration as well as Her Majesty’s Passport Office are increasingly alert to the issues surrounding the birth of surrogate children. Broad concerns over the risks of child trafficking as well as common incidences of document fraud in nationality and passport applications arising in surrogacy scenarios has led to a very strict and, at times, frustrating process for intended parents looking to bring their child into the UK. Guidance issued last year to help clarify the immigration issues which can arise was re-issued in February 2014. The Foreign and Commonwealth Office appear to be keeping this guidance under review and their regular updates are in recognition of the increase in families created through surrogacy.
Worldwide developments, trends and challenges
News and stories around surrogacy repeatedly hit the media headlines too, and the controversial subject is high on the agenda of legislators and policy makers alike. Recent developments worldwide include:
In the US, where the lucrative surrogacy industry is already developed and booming, there is talk of changing New York laws to allow commercial surrogacy. Other states already permit commercial surrogacy though it is California, which is often the first port of call for intended parents from Britain looking for a safe and established country for surrogacy. Children born in the US also continue to benefit from acquiring automatic American nationality, and can apply immediately for a US passport to facilitate travel back to the UK.
On the other hand, India lacks regulation and finds it difficult to shake off the reputation of an industry, which is taking advantage of poor women. Recent press coverage talks of the world's biggest "baby factory" and there is an on-going debate about whether the Indian industry (worth an estimated $400m per year) is exploiting or empowering the Indian surrogate mothers. Despite its reputation, India remains a popular and often cheaper destination for intended parents from Britain, though they should be aware of the specific challenges of Indian surrogacy before they embark on the process. The current timescale for a UK passport application (made from India) is upwards of 16 weeks, meaning parents cannot leave India with their child for a significant period of time after birth.
The UK authorities remain sceptical about documentary evidence provided from India, particularly where this relates to a surrogate mother’s divorce and/or being widowed. Previous applications made in India have been accompanied by fraudulent documentation and this means these applications can be subject to extra scrutiny. Intended parents may also find obtaining the required documentation in India to be a slow process. It is essential that they discuss the necessary documents with the clinic and surrogate mother at the earliest opportunity and, where possible, these are reviewed in advance of the child’s birth to avoid any unnecessary delays in submitting applications for British nationality and/or passports. Intended parents will also likely need to instruct local Indian lawyers to help with the process of gathering documentation.
There is reportedly a growing surrogacy market in Canada and the legalities are governed by Canada's Assisted Human Reproduction Act which allows lawyers to draw up contracts; though there are strict limitations in relation to payments and making arrangements with the a surrogate on a commercial basis (similar to the position in the UK).
The government in Ireland has recently announced proposals to draft new legislation dealing with the parentage issues in surrogacy cases. Currently, there is no legislation in place which covers surrogacy, leaving Irish parents in an uncertain position. The Supreme Court in Ireland is due to hear a landmark appeal on whether the genetic or surrogate mother should be named on the child's birth certificate.
Key factors to consider
With a wealth of commercial international surrogacy opportunities out there for intended UK parents, it’s important to weight up all the options and respective challenges in relation to the country you chose – whether these relate to:
- Costs – the price you pay can vary greatly. In our experience, the principle of ‘you get what you pay for’ usually applies
- Welfare and care of the mother and baby – ask the agency plenty of questions and do your homework to satisfy yourself that your surrogate mother and baby will have the best care possible
- The quality and experience of the agency you chose – including the support they offer the surrogate mother and the support to you in your parental order application and in complying with the UK immigration, nationality and passport application processes
- Nationality and visas – every country has its own rules and some countries, e.g. the US, will grant the baby a passport, which enables you to leave the US shortly after birth. Entering into a surrogacy arrangement in India means being prepared to spend an extended period of time outside of the UK once your baby is born
- Legal complexities and challenges as each country (and individual states in the US) has its own set of rules and regulations, including also whether same-sex intended parents are acceptable
Whatever the country of birth, British parents considering surrogacy abroad should consult the new guidance paper, Surrogacy Overseas, which was issued by the Foreign and Commonwealth Office. This advises intended parents to review the rules carefully and to seek specialist legal advice before embarking on their surrogacy journey.