12 things for intended parents to consider before entering international surrogacy

In a recent Family Court decision, Z (Foreign Surrogacy) [2024] EWFC 304 , the judge provided crucial guidance for intended parents—particularly same-sex couples—seeking surrogacy arrangements abroad. The case involved a child, conceived through surrogacy with the help of a fertility clinic in a country where surrogacy arrangements for same-sex couples are not permitted.

The parents, who applied for a parental order under the Human Fertilisation and Embryology Act 2008 (HFEA 2008), were reminded of the importance of ensuring that their surrogacy agreement meets all necessary legal requirements both in the jurisdiction where the child is born and under UK law.

While the parental order was ultimately granted, the judge highlighted the importance of careful planning and understanding the legal landscape of both the surrogate’s country and the UK, particularly for international surrogacy agreements. This is crucial to avoid the risk of potential challenges during the process and post birth, which could result in a prolonged or unsuccessful application.

Surrogacy law specialist Natalie Lester highlights 12 key considerations for intended parents planning surrogacy arrangements abroad.

Key considerations for international surrogacy

1. Check surrogacy is legal in the chosen jurisdiction

It is essential for intended parents to understand whether surrogacy is permitted in the jurisdiction where they intend to arrange for the surrogacy. This is especially relevant for same-sex couples, as some countries have restrictions on surrogacy arrangements involving LGBTQ+ individuals.

2. Ensure you will be recognised as the legal parent in the relevant jurisdiction and check steps needed for legal parenthood

Intended parents must ensure they are recognised as the legal parents of the child in the jurisdiction where the child is born. This may involve legal procedures either pre-birth or post-birth, and parents should be clear on the steps they need to take to establish their legal parentage. Understanding the local legal framework is crucial to avoid complications later on.

3. Check the surrogate’s legal status

A critical point in surrogacy arrangements is the legal status of the surrogate. In many jurisdictions, the surrogate mother may retain certain legal rights over the child at birth. Intended parents must understand how the law treats the surrogate and her rights, and whether the child will be legally recognised as theirs at birth or whether further steps are required.

4. Check the status of the surrogate’s spouse

If the surrogate is married at the time of embryo transfer or childbirth, the legal rights of her spouse must be considered. In some jurisdictions, the surrogate’s spouse may automatically acquire parental rights, which could complicate the legal process for the intended parents.

5. Be clear on the role of agencies in the surrogacy process

If an agency is involved in the surrogacy arrangement, parents should be clear about its role in matching them with the surrogate. The agency should provide guidance on ensuring that the surrogate fully understands the terms of the surrogacy agreement, especially if there are language barriers.

6. Understand and enforcing the surrogacy agreement

The intended parents should ensure that the surrogacy agreement is clear, comprehensive, and enforceable in the jurisdiction where it is signed. This includes making sure that the surrogate has had the opportunity to fully understand the terms of the agreement, which may require translation services if the surrogate does not speak or read English.

7. Think about the timings of the surrogacy agreement

Intended parents must decide whether to enter into the surrogacy agreement before or after the embryo transfer. This decision has legal implications, as some jurisdictions may have specific requirements about when and how the agreement should be signed.

8. Agree contact arrangements with the surrogate

Surrogacy agreements should outline the arrangements for contact between the intended parents and the surrogate throughout the pregnancy, as well as after the birth. Parents should clarify whether direct contact will be permitted, and how regular communication will be maintained.

9. Clarify where the embryo transfer will take place and where the surrogate will live

The intended parents must also be clear about where the embryo transfer will take place and where the surrogate will live during the pregnancy. Jurisdictional issues can be complex, and knowing where the surrogate will live is important in determining which laws will apply during the pregnancy.

10. Check if changing jurisdiction post-conception is allowed

Some surrogacy arrangements may involve the possibility of changing the jurisdiction where the child will be born. Parents should understand who has the authority to change the location of birth and under what circumstances this can occur.

11. Agree the child’s nationality and birth registration process

The nationality of the child at birth is a key issue for intended parents, particularly when arranging for surrogacy in another country. The birth registration process must be clear, and parents must understand the necessary steps to ensure their child’s citizenship, which may involve liaising with foreign authorities.

12. Consider travel and immigration implications

Finally, intended parents must plan for the child’s travel to the UK. This includes:

• Getting the necessary documents
• Understanding the timeframes for applying for travel visas
• Determining whether immigration advice is needed to ensure smooth travel arrangements.

It’s essential to understand the child’s legal status once they arrive in the UK and the process for bringing them home.

Conclusion: The importance of careful planning when considering international surrogacy

While international surrogacy can offer significant opportunities for same-sex couples and others seeking to grow their families, it is a complex and often uncertain process. Ensuring that all the necessary legal requirements are met is crucial to avoiding potential challenges, both during the surrogacy process and after the birth of the child.

The decision in this case highlights the need for intended parents to be thoroughly informed about both the local laws where the surrogacy will take place and the requirements under UK law. By addressing these key considerations and seeking proper legal advice, intended parents can safeguard their legal relationship with their child and avoid the risks of a prolonged or unsuccessful application for a parental order.

For expert legal advice on international surrogacy arrangements and applying for a parental order in the UK, please contact Natalie Lester.