SET07.24 - (Children) Inter-country surrogacy
This is internal guidance for use by entry clearance staff on the handling of settlement (inter-country surrogacy) for visa applications made outside the UK. It is a live document under constant review and is for information only.
On this page
SET7.24.1 General
There are no international agreements concerning surrogacy. The Human Fertilisation and Embryology Act (HFEA) (www.doh.gov.uk - search under surrogacy) applies to all the United Kingdom and is the Act which regulates surrogacy in the UK.
UK law applies to everyone who is resident in the UK, whether or not they are British citizens or EEA nationals (for more information on EEA see EUN1.2 and SET7.3), and whether or not their residence in the UK is permanent. Those seeking to bring to the UK a child resulting from a surrogacy arrangement will be subject to UK law and its definitions.
The two main principles to the UK's approach to surrogacy are:
- that there should be no financial inducement to encourage surrogacy arrangements and third parties should not profit from making such arrangements, and
- the surrogate mother cannot be bound be any contractual obligation to give up her child.
It is advisable that people considering a surrogacy arrangement abroad take expert legal advice before making any arrangements.
Prospective 'commissioning couples' should be aware that legislation may change.
For further information consult the UK Border Agency's leaflet: Inter-country surrogacy and the immigration rules (a copy can be downloaded under 'Related documents' on the right of this page.)
SET7.24.2 Under UK law, who is the parent?
The UK legal definition of who constitutes a 'parent', (Immigration rules introduction) affects whether a child born abroad as a result of a surrogacy arrangement, may be brought into the UK under the Immigration Rules.
No matter the genetic make-up of the child, UK law defines the woman who carries and bears the child as the legal mother. If the woman is married at the time of implantation or delivery of the child, her husband is the legal father, unless it is shown that he did not consent to the implantation of the embryo or the artificial insemination. Only where the surrogate mother is single is there a chance of UK law viewing the sperm donor / commissioning male as the legal 'father'.
Where neither of the commissioning couple have a genetic connection with the child, there will be no possibility of UK legislation allowing for the commissioning couple to obtain a Parental Order, nor of adopting the child.
SET7.24.3 Are surrogacy arrangements enforceable in UK courts?
No. Any form of contract undertaken by those in a surrogacy arrangement cannot be enforced in the UK courts by any of the parties concerned.
SET7.24.4 How long can the child stay?
If coming under Route B (Paragraph 297 of the Immigration Rules), then an application for Indefinite Leave to Enter the UK can be made. (Indefinite leave will lapse if the holder is absent from the UK for more than 24 months).
If coming under Route C, the child may be granted leave to enter the UK for a period of 12 months at the discretion of the Secretary of State outside the Immigration Rules. Once a Parental Order is granted by the UK court an application for Indefinite leave to Remain can be made to the UK Border Agency. Subsequently an application may be made to register the child as a British Citizen under Section 3(1) of the British Nationality Act 1981.
SET7.24.5 EU and EEA Nationals
See EUN1.2 Who are EEA antionals?
and
SET7.24.6 What is the endorsement?
SET7.24.7 Is there a right of appeal?
Yes, there is a full right of appeal.