If you too are a British expatriate parent conceiving your family through US surrogacy, here is a brief guide to what you need to know.
Getting started: International law and surrogacy
The starting point is the big picture, considering what nationalities your child can have, what borders you need to cross, and where in the world you need your parentage to be recognised.
Since there is currently no international law framework for surrogacy, living overseas typically means managing the law on surrogacy in at least three different jurisdictions:
- the US state where your child is born,
- the country where you are living, and
- if you are British – the UK.
You might add more countries to this list if you or your spouse/partner have connections with other countries or additional nationalities.
Why do British expatriate parents go to the US for surrogacy?
Most of the overseas surrogacy parents we work with live in the USA or Europe, with Asia (particularly Singapore and Hong Kong) and the Middle East (particularly the UAE) also common.
Some have moved for work opportunities, while others have followed a non-British spouse or partner, or have an internationally mobile lifestyle.
Whatever the background, it’s easy to see why the USA is the most popular international surrogacy destination for British expatriates. For parents already living in the US, it is logical to access surrogacy services locally. For those living in Europe, Asia or the Middle East surrogacy is prohibited at home, and the US offers the most safe, robust and ethical surrogacy option globally.
Where do I start as a British expatriate parent who wants to have a child through surrogacy in the USA?
Navigating cross-border surrogacy is a bit like assembling a giant jigsaw, but it can be managed effectively with planning and good legal advice.
Do your homework carefully
You need a team of professionals (both in the US and elsewhere) who are experienced working with internationally mobile parents and can collaborate to help you plan your legal strategy on travel, nationality and parentage.
It isn’t uncommon for our clients to be applying for nationality or parentage in multiple countries, either simultaneously or in a carefully planned order. We routinely work with lawyers in the US, France, Germany, Italy, Spain and many other countries.
Consider getting expert support for your US journey
If you are at the start of the process, we offer a fully-managed US surrogacy pathway working together with our sibling organisation Brilliant Beginnings.
This is a full-support US surrogacy service which starts right at the beginning to help you shortlist and choose your full professional team, and from there to project manage and provide both practical support and UK law advice and representation throughout your US surrogacy journey. The Brilliant Beginnings/NGA Law US surrogacy pathway is available to parents who are British or UK domiciled regardless of where they are living.
Alternatively, if you have already chosen your clinic, agency and US attorney or are going through international surrogacy somewhere other than the US, you may just need to add a UK lawyer to your team. NGA Law routinely provides strategic UK legal advice and helps parents to resolve British nationality and parentage smoothly.
With a shared wealth of connections and experience, the NGA Law and Brilliant Beginnings teams are passionate about supporting British parents living all around the world. We know very well that international families have more legal admin to manage than most, and we are here to help ensure your international surrogacy journey runs as safely and smoothly as possible.
FAQs about US surrogacy for British expatriates
Will my surrogate child be British?
Wanting British nationality for your surrogate child is often a key priority, and typically why parents first contact us. The British nationality rules are complex but there is normally a path to securing British nationality via any British parent named on a US birth certificate – your child doesn’t necessarily need a British biological parent to become British.
What you need to do in practice depends on your situation. If your surrogate is unmarried and your child’s biological father is British other than by descent, then you can apply for a British passport directly (with your surrogate’s consent and subject to filing a lot of paperwork). Otherwise, you will need to make a preliminary application to establish British nationality for your child, either to the Home Office for a grant of British nationality, or to the English family court for a parental order.
Travel and immigration planning often runs in parallel with nationality but here the strategic issue to manage is timing. British passports can take anything from two months to two years to obtain depending on your circumstances so they are rarely used for getting home immediately after the birth. A US passport is available much more quickly so is usually the passport used for immediate travel (although often does not give a longer term right to stay in the home country without another passport or residency visa).
Your child may be eligible for other passports too if either of you is a national of another country. Working out which passports (and if needed residency visas) to apply for in what order depends on eligibility, process and timescales. You need this information to enable you to plan the logistics of travelling after the birth, as well as your longer term plans as a family.
Will we be recognised as our child’s legal parents in the UK?
If you want your family to be fully recognised in the UK you should also apply to the English family court for a parental order after your child is born.
This is important even if your child is already British since UK law otherwise treats your surrogate and her spouse as your child’s legal parents irrespective of what the US birth certificate or court order says. This could have significant long term implications for your family, particularly if you plan to return to the UK in the future.
Parental orders (made under the Human Fertilisation and Embryology Act 2008) are designed to resolve the legal status of children born through surrogacy and they fully and permanently extinguish your surrogate’s status and make you (both of you if you are a couple) your child’s legal parents for all UK legal purposes. They also trigger the issue of a British birth certificate for your child and make it much more straightforward to apply for a UK passport.
It is not necessary for you to be living in the UK to apply for a parental order. At least one of you (and not necessarily the biological parent) needs to be ‘domiciled’ in the UK but that doesn’t mean you must be UK resident. If you are from the UK originally and haven’t settled in another country with the intention to stay forever, then you are likely to have retained your UK domicile of origin while living overseas. You might also have acquired a domicile of choice in the UK if you settled here with the intention to stay permanently in the past. The court will expect careful evidence from you as to your history, your continuing connections with the UK and your future plans, but it is very common for parental orders to be granted in favour of British parents living outside the UK.
Have more questions? Get in touch
If you are considering surrogacy in the US and would like legal advice or have more questions about your options as British expatriates, please get in touch.
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