What you need to know
Family building through surrogacy is a complex and time consuming process in normal times, but the current pandemic has further exacerbated the situation by causing drastic delays and international travel issues for UK intended parents.
The US is a popular jurisdiction with UK intended parents due to many States’ surrogacy-friendly laws and the entitlement of the child to a US passport. However, the ongoing pandemic continues to impact international intended parents seeking to enter the US for the birth of their surrogate baby and thereafter return home.
What you should be aware of:
Travel into the US. UK intended parents will need to ensure that they can make arrangements to travel into the US in plenty of time for the birth, factoring in any travel ban or quarantine period.
Hospital policies. In a surrogacy arrangement, there are at least 3 parties involved, all equally important: the gestational carrier and both the intended parents. With new COVID policies in place, hospitals and medical facilities are strictly restricting the number of people allowed inside for the purpose of social distancing and to avoid overcrowding for the sake of physically vulnerable and immunocompromised patients.
Difficulties obtaining legal paperwork and travel documents. A US born child, regardless of whether they are born to non-US citizens through surrogacy, are entitled to be issued a US passport. Many UK intended parents rely on this passport when returning to the UK rather than obtaining UK passports as it is usually a quicker process and, provided they also travel with a solicitor’s letter confirming that they will be applying for a Parental Order and are entitled to do so, immigration at the UK border is usually accommodating. However, with the US Department of State limiting the issuance of passports for people with life-and-death emergencies traveling within 72 hours, obtaining passports for newborns has become problematic.
UK passport. If obtaining a US passport is not possible, the UK intended parents must therefore obtain a UK passport for their baby before being able to travel back to the UK. Applying out of country is usually very time consuming and not ideal for parents with a newborn in a foreign country who just want to go home. However, the UK government has acknowledged this crisis and it is possible, in these urgent situations, to apply to the UK Home Office for the issuance of emergency travel documents for the baby to enable UK intended parents to travel home from the US.
Contracting Covid-19 or any other medical issues. We all know that the US health system is nothing like our beloved NHS. UK intended parents will need to ensure that they have adequate medical insurance for not only the baby and the surrogate, but also for themselves. This may be difficult in view of the advice against travel and therefore the limitations on travel insurance policies.
Once home, UK intended parents will need to start thinking about their Parental Order application. Even if the baby is issued with a US birth certificate naming the intended parents, in the UK, the law considers the surrogate and her spouse, if she has one, as the legal parents. The making of a Parental Order has a transformative and lifelong effect in that it transfers legal parenthood from the surrogate (and her spouse) to the intended parents, forever extinguishing the surrogate’s Parental Responsibility. The UK Registrar will then issue another birth certificate naming the intended parents as the legal parents.
This application must be made within 6 months of the child’s birth. There must also be a biological connection to the child by at least one of the intended parents. It is not possible to apply for a Parental Order if there has been “double donation” whereby a donor egg and donor sperm is used to create the embryo.
In the US, commercial surrogacy, whereby the surrogate is paid for her services, is legal. This is different to the UK, where only altruistic surrogacy is permitted. However, it is not illegal for UK intended parents to travel to the US to engage in surrogacy in those States which permit commercial surrogacy. However, details of all the payments made must be set out as part of the application for a Parental Order and retrospective permission must be sought from the court for those costs over and above ‘reasonable expenses’.
There are several other eligibility criteria that must all be fulfilled before a UK intended parent is entitled to apply for a Parental Order. It is imperative that before embarking on the surrogacy journey, especially in an international jurisdiction, UK intended parents take early legal advice from a specialist UK surrogacy lawyer to ensure that when they eventually have their much longed for baby, when they return to the UK, they will be entitled to become the legal parents.
Any UK intended parents thinking about embarking on a US surrogacy journey are welcome to contact Patriot Conceptions, a US based surrogacy agency for an initial chat as to what US surrogacy entails and contact Natalie Sutherland at Burgess Mee Family Law to discuss the legal requirements from a UK perspective.