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Are you thinking of embarking on a surrogacy arrangement abroad? Dawson Cornwell’s Colin Rogerson and Richard Kwan highlight some of the legal complications…

India, Ukraine, California… an odd grouping, we concede, but there’s one thing they have in common: they have all become surrogacy hotspots for global reproductive tourism. With the recent added celebrity cachet of names like Nicole Kidman, Robert De Niro and Elton John, surrogacy is officially the international adoption preference of the 21st century. Unsurprisingly,

increasing numbers of gay couples choose to start their families through surrogacy – but where to begin? International approaches

vary enormously. France and Germany have outlawed surrogacy. In some US states, surrogacy laws and practices are so liberal that commercial surrogacy thrives: a one-stop shop to clearing student debt or supplementing the war wife’s income. Other hotspots include Ukraine (but only for straight, married couples) and India, which has, helpfully, made no specific laws at all on the issue. The UK sits somewhere in the middle: it is legal to enter into surrogacy arrangements but those arrangements are not enforceable. Further, it is a criminal offence for anyone other than the intended parents or the surrogate to be involved in any way in making a commercially-based surrogacy arrangement. It can also be difficult to find a surrogate, because advertising either for or as a surrogate mother is illegal. In short, unless British intending parents just happen to know someone who’ll carry their child, free of charge, they will make

designed for surrogacy arrangements. The effect of a parental order is to vest all legal parental rights with the intended parents – to the exclusion of the parental rights of the surrogate (and her husband/civil partner). International surrogacy

cases are currently all heard in the High Court in London. In order to be eligible

for a parental order, the intending parents must satisfy a long list of criteria that it is advisable to investigate prior to making the surrogacy arrangement.

their surrogacy arrangements abroad.

The issues that arise

from international surrogacy arrangements are numerous and complicated. There are immigration issues to consider, in particular, how to bring the child back home to the UK.


A child can only have

two legal parents. English law will always recognise the surrogate mother as a legal parent of the child. If the surrogate is married (and the husband consented to the surrogacy), the surrogate’s husband will be treated as


the legal father. This is the case regardless of whether there is a genetic link between the surrogate and the child and regardless of where the child was born. In some US states it is possible to obtain “pre-birth” orders months before the child is born naming the intended parents as the legal parents on the birth certificate. But British law does not recognise the orders made by the US Court, so this is of little comfort if you are intending to raise your child here.

But there is light at the end of the tunnel, and that light is the “parental order”. It is a bespoke order made by a UK court and specifically

For further information or advice, please contact Anne-Marie Hutchinson OBE, Partner and Head of International Children Department at Dawson Cornwell, or Colin Rogerson, Solicitor, who are specialists in surrogacy and advises on complex domestic and international surrogacy arrangements. Dawson Cornwell is a niche family law firm in London, acting for clients across the country and abroad. The firm provides advice to LGBT clients on prenuptial agreements, dissolution of civil partnerships and financial settlements. It has a world- renowned children department specialising in international children disputes including child abduction, forced marriage, international surrogacy arrangements and preconception contracts. The firm has a Diversity Aware Charter Mark and, in 2012, Anne-Marie Hutchinson OBE received an “Albert” from The Albert Kennedy Trust, on behalf of the firm, in recognition of its work in defending the human rights of young LGBT people on an international level.

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