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What you need to know about United Kingdom Fertility Law
Attorney Jade Quirke of Russell-Cooke LLP in London answers common questions about the legal process for intended parents from the United Kingdom who are pursuing surrogacy in the United States or elsewhere, including how to return home with their surrogate baby.
Overview
Summary
The parentage process in the United Kingdom
In the United Kingdom, the parentage process for intended parents who had their surrogate baby overseas is a post-birth court application. This means that all of the paperwork and the court processes occur when the intended parents return to the UK with their child.
The UK court will request to see many of the documents and paperwork provided during their U.S. surrogacy journey so it is usually quite easy for intended parents to obtain those documents.
Required documentation for a parental order in the UK
It is highly recommended that UK intended parents have the U.S. court paperwork in hand when they return to the UK because that will be required for the UK court process.
In addition, the other essential documents that will be required are:
- A copy of the gestational surrogacy agreement signed both by the intended parents and the surrogate and, if relevant, her spouse.
- A copy of the U.S. court orders and judgments that have been made.
- Copies of the escrow or any financial paperwork relating to the payments that have been made to the surrogate during the journey.
- A copy of the child’s U.S. birth certificate.
- A copy of the UK intended parents’ British passport, if relevant.
- A copy of the UK intended parents’ marriage certificate if they are a couple and they are married.
The birth certificate process
If the intended parents are going through an arrangement in the U.S. they will be named on the child’s U.S. birth certificate. However, from a UK legal perspective, the U.S. birth certificate and who is named is not relevant. So instead, UK surrogacy law applies and the surrogate is recognized as the legal mother. If she is married then her spouse is treated as this second legal parent. When the intended parents return to the UK they will apply for the parental order which, once fully processed, will then trigger the release of a completely new
British birth certificate which will have the intended parents’ details on there as well and effectively that British birth certificate then supersedes to a certain extent the U.S. birth certificate. The new British birth certificate is the one that will be used for all legal purposes in the UK.
The process to amend the original birth certificate is largely automated and adminstrative. Once the court makes the parental order in favor of the intended parents, the court will then automatically send a copy of that order to the general registry office in the UK, who are responsible for registering birth. Once they receive that, they will enter the child’s details onto what is called a parental order register that’s held in the UK. Approximately six to eight weeks later, the new birth certificate will then be released naming the UK intended parents as the legal parents.
Timeline for returning to the UK with your surrogate baby
How soon intended parents can return to the UK after delivery is largely dependent upon the individual’s personal circumstances.
The quickest option to travel is to return on the child’s U.S. passport. The surrogate child will automatically be born an American citizen and therefore entitled to a U.S. passport. Utilizing this method, UK intended parents can often return to the UK with their child in a few weeks after the birth certificate and passport are issued, barring longer processing times due to COVID.
When UK parents return to the UK on their child’s U.S. passport, UK border control does have to exercise their discretion in terms of whether to permit the child entry because, of course, they’re not going to be
a U.S. visitor intending to stay in the UK and then return to the U.S. UK intended parents should be prepared to provide reassurance to the border control that the intended parents are taking steps to resolve legal parenthood through the parental order process which will then, in turn, resolve the nationality aspect of things.
Some intended parents do prefer to wait and secure a British passport for their child before coming back. The downside to that process is it isn’t quick in comparison to the U.S. process and whether or not the child is automatically entitled to a British passport will depend very much on the surrogate’s marital status and the nationality of both the biological father or mother.
Services and costs for the UK parental order with Russell-Cooke LLP
Russell-Cooke LLP offers a broad range of services and to help UK intended parents and the pricing depends on what level of support the intended parents feel that they need. For example, some intended parents prefer to have an initial consultation whereby they learn the legalities associated with their plans and are talked through what they will need to do as part of that process to help ensure a smooth process to secure that final parental order. Some parents might feel that that is all that they need and they don’t need any further legal input so the costs can be really quite minimum. Other intended parents require a more personalized approach through the entire process, in which case the legal fees are likely to be sort of much higher in comparison to that initial consultation.
There’s a range of different services that Russell-Cooke can offer subject to the level of input that the intended parents need and also subject to their budget.
Important information for single intended parents, same-sex intended parents, and parents using all donor material
Single parents and same-sex parents can secure a parental order.
Double donation is slightly more complex in the sense that it then rules out the ability for the intended parent or parents to secure a parental order. So one of the mandatory criteria for a UK parental order is that at least one of the intended parents must be biologically related to the child. So from a practical perspective, it is possible for British parents to proceed with double donation, but from a legal perspective it rules out the parental order and makes resolving legal parenthood much more complicated.
It is highly recommended that people in this scenario contact Russell-Cooke to get legal advice before proceeding.
When to get started
Intended parents should contact legal representation in the UK sooner rather than later. International surrogacy is complicated because there isn’t any international harmonization of surrogacy laws. Not only are there family law considerations, but there are also immigration considerations as well. The sooner intended parents can receive legal advice and be reassured about the steps that they will need to take to resolve those things, the smoother of the journey they will experience from start to finish.
Contacting Russell-Cooke LLP
Intended parents in the UK can contact Jade Quirke directly at [email protected].
Jade and the rest of her team at Russell-Cooke LLP are always happy and open to answer any questions you may have.
About Jade Quirke
Jade is an associate in the children team with expertise in fertility law.
She advises clients on a broad range of domestic and international children law issues including child arrangements, known donor/co-parenting, legal parenthood and relocation disputes. She is particularly experienced in advising non-traditional and LGBTQ+ families and often appears before the High Court in complex cases.
Jade also advises transgender clients on a variety of matters ranging from applications for Gender Recognition Certificates to family law issues such as legal parenthood and child arrangement disputes. She has represented transgender parents and parents of transgender children in complex court proceedings.
She has spoken at many events on issues relating to children, fertility and surrogacy law. She has also written articles and blogs covering topics such as adoption, co-parenting arrangements, surrogacy and fertility issues for legal publications.
Jade qualified as a solicitor in 2013 and joined Russell-Cooke in July 2021. She adopts a strategic and sensitive approach to all of her work and strives to work with her clients to resolve matters in a constructive and cost-efficient way.
Next Steps
To learn more about the fertility laws in the United Kingdom before planning your egg donation and/or surrogacy journey, please contact Jade Quirke via email at [email protected] and via her website www.russell-cooke.co.uk/.
If you are ready to begin your surrogacy journey with GSHC as an intended parent, please complete our Intended Parent Intake Form.