High Court highlights the importance of establishing ‘domicile’ in international surrogacy cases (new NGA leading case)

December 16, 2016
High Court judge Mrs Justice Theis has granted parental orders for two children born through a gestational surrogacy arrangement in the US. On the surface this is yet another international surrogacy case – one of the many which are seen by the UK High Court every week. However, this case is unusual due to the tricky domicile position of the Applicants. It highlights the importance of being able to provide clear evidence to the court establishing domicile in international surrogacy cases.

The parents in this application were both born in Germany and first came to the UK in approximately 2001. They settled in England, with the Applicant mother deciding she wanted to live in the UK permanently and naturalising as a British citizen. Sadly, for employment reasons, the Applicants had to return to Germany in 2013, and that is where they were living when their children were born in the US in 2015.

To secure their parentage under UK law the Applicants promptly made a parental order application in the UK (having also secured their position as parents in the US and later in Germany). Their case came before Mrs Justice Theis, who, in order to make a parental order, needed to be satisfied that at least one of them was ‘domiciled in the UK at the time of the application and the making of the order’.

Domicile is an unusual legal concept, more complex than the simpler questions of an individual’s nationality or where they are resident. It is about personal history, where someone considers their permanent home and roots to be and where their allegiances ultimately lie.

Every individual is born with a “domicile of origin” obtained from their parents at birth. You cannot change your domicile of origin but you can displace it by adopting a “domicile of choice” in a new chosen home. This is done by both physically moving to another country and forming the intention to make it your permanent or indefinite home. A domicile of choice can then be superseded by another domicile of choice elsewhere, or it can be abandoned, in which case the domicile of origin revives.

In this case, both Applicants had a domicile of origin in Germany. They needed to satisfy the court that one or both of them had adopted a domicile of choice in England. Since they were no longer living in England – and this was what made the case so unusual – they also needed to satisfy the court that their English domicile of choice had not been abandoned.

Domicile is something decided by each judge in each parental order application. It is fact-specific and the court can find even minor details persuasive in building a picture of where someone sees their true home, for example where they would like to be buried, their favourite TV programmes, where they spend Christmas and even which flag they fly if they own a yacht! All of this can sound very trivial but domicile cases can be complex and no detail is too small.

In this case, with the help of the detailed written evidence provided (and the Applicant mother’s oral evidence in court), Mrs Justice Theis found that the Applicant mother had adopted and retained her domicile of choice in England, although she said that the circumstances of this case were ‘close to the margin of facts.’ She made parental orders in respect of the children, reassigning parentage to the Applicants and extinguishing the rights and responsibilities of the US surrogate.

It is important to obtain early legal advice if domicile might be an issue and you are conceiving a child through surrogacy. If you cannot meet the criteria on domicile, the court simply does not have the power to make a parental order even if it would be in the best interests of your child.  We deal with many cases in which domicile is a significant issue, both those where the parents are British but not living in the UK, and those where parents are not originally from the UK (or, as in this case, both!). This case demonstrates who complex the rules on domicile can be, and how important it is to deal with the issue carefully and thoroughly.

But there is also a wider point here. The sad reality is that the current rules are overly restrictive, and some parents with children born through international surrogacy are left without the means of securing their UK parentage properly. Part of our campaign for law reform is to see the court’s jurisdiction widened so that parents who are British citizens or resident in the UK (but not domiciled here) can be recognised as legal parents in the same way as parents with a UK domicile. We live in a global world where people don’t always remain in the place where they were born, and the current framework for surrogacy in the UK does not reflect the reality of the modern world.

In the meantime, this case shows how important the issue of domicile is, and gives hope to parents who are both not living in the UK and not from the UK originally that they may still be able to secure their parentage.

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