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Parental orders for international surrogacy

Thursday, 15 January 2015

imageSecure parentage in the UK requires a parental order following international surrogacy. A parental order is official documentation to reassign parenthood fully, giving parental responsibility to the intended parents, and removing any parental status from the surrogate permanently thus confirming British nationality.

As with any issued parental order the court has to assess the application, but with detailed scrutiny on the following issues:

Does the foreign surrogate mother consent?

The UK court ensures that a foreign surrogate mother (and spouse where relevant) understands any documents she is required to sign, and that all formalities have properly complied with the terms of service.

In the case of Re D and L (2012), an Indian surrogate couldn’t be found to have supplied her consent to a parental order application. However, the High Court waived the requirement for her consent on the basis that everything had been done to locate her. This remains to date the only reported parental order granted without the surrogates consent.

Payment for overseas surrogacy

Most international surrogate cases will involve payments of more than the expenses of the agency and the surrogate involved. The court has to agree to authorise these payments before any parental order can be made.

There have been many international surrogacy cases, and no recorded case in which a parental order was refused because too much was paid.

Domicile and jurisdiction

If one or both of the intended parents is domiciled in the UK, then the court is able to issue a parental order. This is not based on where you are living or your citizenship status, but a wider assessment of where your permanent home is. You automatically acquire a domicile of origin at birth, and this is only transferred if you move to another country with a permanent intention to stay.

If you are British and living abroad and are looking to obtain a parental order, then you will need to confirm your continuing links to the UK and intention to return. If neither of the intended parents are domiciled in the UK then the court will not have the power to grant a parental order.

For more information on international surrogacy, read our Guide to international surrogacy.

If you would like to discuss an international surrogacy arrangement, or if you are thinking about any surrogacy arrangements then speak with our experienced surrogacy solicitor, Jeetesh Patel.

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