"Life affords no greater responsibility, no greater privilege than the raising of the next generation"
C. Everett Koop
Many people look abroad to find a surrogate. If you are considering doing so, you should note that different countries deal with parenthood and surrogacy in different ways. This area of the law can be complex and it is paramount that to fulfill your dream of bringing your child home that specialist advice is sought early on.
The McAlister Family Law team have vast amounts of experience in advising parents who are considering expanding their family through surrogacy both in the UK and abroad.
Careful planning is required to make sure that international surrogacy is successful.
Many parents can gain access to professional surrogacy services abroad, in many different countries. The USA is well known as a place where parents plan an international surrogacy. However, there are other countries, like Canada and the Ukraine. Different countries have different laws: in 2015 the Indian government banned foreign people engaging with surrogate mothers.
It must be remembered that different countries have different laws. Therefore, it is important to understand the law in the destination country, at home and in any other country with which you may connected to.
It is important to understand the law in the destination country, at home and in any other country with which you may be connected. Parents need to be clear about surrogacy laws abroad and ensure that they are advised and working within the relevant framework. Parents also need to consider the quality of the surrogacy regulation in the country and how well established the surrogacy services are.
Parents will also have to consider the nationality of the child, depending where the birth takes place, how to travel home with the child, and the arrangement of travel documentation. It is important to understand how the British nationality applies to a child and what you need to do in practice to bring your child home after birth.
The law in England and Wales will treat the surrogate and her spouse, if she has one, as the child's legal parents, even if you are the legal parents in the country where the child is born. Parents who intend to secure their parental status in England and Wales will need to apply to the court for a parental order after the birth of the child. The application will be heard before a High Court judge and he or she will consider a number of factors before making an order.
The Judge will have to consider the payments that have been made to the surrogate, as most couples will pay more than expenses to a surrogate. The court has to consider the extra payments and approve the payments which exceed reasonable expenses. The court will make an order based on the child’s best interests, and there are High Court authorities dealing with international surrogacy.
The courts in England and Wales also ensure that any foreign surrogates understand any documents she is asked to sign, and that the procedures have been properly complied with. The court will want to ensure that the surrogate has given consent, before a parental order can be made.
One or both of the applicant parents applying to the court for a parental order must be domiciled in the United Kingdom, Channel Islands or Isle of Man. Domicile relate, not to where you are living or your citizenship status, but to a much wider assessment of the location of your permanent home.
If you are not originally from the UK, you will need to show that you are permanently settled in the UK. If you are from the UK and you are living abroad, you will need to confirm your links with the UK and your intention to return to live here.
It is important that intended parents obtain legal advice from a solicitor regarding surrogacy agreements, the practical aspects of bringing a child back to the UK and also applying for a parental order.
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