The importance of immigration advice when considering international surrogacy
When undertaking an international surrogacy, immigration may play a crucial role in returning to the UK with your baby. That said, it may be one of your last considerations during the whole process. Immigration may be a pivotal aspect of international surrogacy as even if the Intended Parents (“IPs”) are British, their baby born outside of the UK may not necessarily be born British. As such, part of planning for an international surrogacy should include obtaining advice on what nationality your baby will be at birth, how will your baby be able to obtain a passport and how long that process can take. There are many questions and considerations to make when planning ahead. Will your baby need a visa to return to the UK with you? Depending on how long these processes will take, IPs should also think about whether they will need a visa allowing them to stay in the baby’s country of birth until the baby’s travel documents are available and whether that visa poses any restriction on activities which can be undertaken by the IPs, including remote working.
The reason babies born to British IPs may not be British at birth is because the laws which govern the passing on of British citizenship state that for nationality purposes the mother of the child is the woman who gives birth to the child and the father is that woman’s husband. If she is not married, then the father is the person who is the genetic father. This is the case regardless of the fact that the IPs may be named on the birth certificate as the legal parents of the baby in the country where the baby was born.
This means that where a surrogate is not British, and she is married to a person who is not British, the baby will not be British at birth. British IPs would need to consider if the baby was entitled to any other passport. It is important to remember that each country has their own laws regarding nationality and surrogacy, and so it may not simply be the case that the baby would be entitled to a passport of the country of birth. While all babies born in the US and Canada are entitled to US or Canadian passports regardless of the nationality of the parents due to being born there, other jurisdictions are not as generous. For instance, babies born in Ukraine, Georgia or Cyprus risk being born without entitlement to any nationality if they do not automatically inherit British nationality from their IPs.
Where there is no automatic acquisition of a nationality at birth and, therefore no immediate entitlement to a passport, British IPs would need to register their babies as British with the Home Office. Once the Home Office has granted British nationality, IPs would then need to apply to His Majesty’s Passport Office for the baby’s first British passport and receive this before being able to travel home with the baby. As this process could take up to or, in some cases, more than six months, IPs would need to plan to be outside of the UK for a considerable period of time. If either IP has dual nationality, and it may be possible to obtain a passport for another nationality faster, IPs may wish to consider this, and, if necessary, any visa which may be required to enable the baby to travel to the UK on that passport.
Given the timeframes and costs obtaining a passport may pose, careful planning is key to returning home to the UK smoothly with your baby and immigration should be a factor when initially considering where to undertake your surrogacy journey
Article by Mishcon De Reya
