Parentage and Nationality: How Does it Work in Surrogacy Process?

By Babygest Staff
Last Update: 07/05/2019

Surrogacy is is a practice allowed only in a few countries around the globe. Therefore, single men or women and couples who need this method to become parent have to turn to other countries whose legislation is favorable.

The main doubt arises when it comes to the moment of determination of parentage and the registration of babies born abroad by surrogacy.

In this article, we will look into some of the options for intended parents.

Parentage Determination

One of the greatest fears of parents who have had a child by abroad surrogacy is the refusal on the part of the respective authorities to register their child in the civil register when returning to their country of origin.

Usually, there are two possible solutions offered in relation to the registration of minors born by surrogacy in a foreign country:

  • Parentage by adoption: parentage is given to the biological father and, subsequently, the mother must ask for the adoption of her partner's child.
  • Parentage by order: a parentage hearing is held to determine the paternity and maternity of intended parents.

The main problem comes when it is not possible to meet the requirements set to apply one or another alternative. For example:

  • if the country where the surrogacy is carried out does not give a judicial decision.
  • if there is no male figure (single mothers or lesbian couples).
  • if the father cannot provide the male biological component, i.e. the spermatozoa.

Options for U.K Citizen

In the United Kingdom, surrogacy has been legal since 1985 due to the Surrogacy Arrangements Act 1985. This allows intended parents to choose whether they want to do it in the UK or go abroad because they find it too complicated in the UK.

Surrogacy in the U.K

According to this arrangements, a woman will be considered a surrogate mother if she carries a child as part of an arrangement that is done:

  1. Before she begins to carry the child
  2. With the purpose of handing over the child born as a result

It is important to keep in mind that, under UK law, the surrogate will be considered the legal mother of the child.

Like many other countries, United Kingdom considers that the woman who gives birth is the legal mother applying the Roman-law principle mater semper certa est, which means the mother is always certain. In short, it means that the mother of a child is always known.

In order to become a parent legally, you have to follow these steps:

  1. Fill in a «C51 application form for a parental order» (which costs £215).
  2. Give it to a family proceedings court, along with the child’s full birth certificate.
  3. Hand over the C52 form (document issued by the court) to the surrogate
  4. Set a date for the hearing
  5. Get the parental order when the surrogate agrees

If you are not related to the child, the only option to become the legal parents will be an adoption order. In this case, it will be necessary to involve a registered adoption agency in the surrogacy process.

When starting the process, it is important to know that you must have a fixed and permanent residence in the UK (including Channel Islands and Isle of Man), or have lived in the country for at least one year before you start the application process.

Surrogay abroad

When considering going through surrogacy overseas, you have to keep in mind that the process for getting your child back with you can take several months.

You have to know that every country and sometimes every states has its own legislation, so it is really important to seek specialist legal advice in the UK and the other country you are travelling too.

There are two options:

  • If the surrogate is single: the child has an automatic claim to British nationality if the intended father is has a genetic link to the child and is able to pass on his nationality. In this case, you have to write the surrogate mother’s details as the child’s mother on the passport application form. Both the intended father and the surrogate have to sign the form, as we need the permission of both parents to issue the passport.
  • If the surrogate is married: you have to apply to register the child as a British Citizen completing the MN1 form, registration of a child under 18 as a British citizen. You have to wait until the registration is approved to ask for a passport. It may be a really long time process.

For more informations, you should read the Guide for British nationals who are considering entering into surrogacy arrangements in foreign countries redacted by the UK government.

Options for U.S Citizen

The United States are the most experimented country in surrogacy. However, you have to know that there is no federal law governing surrogacy because the regulations vary by state.

Surrogacy in the United States

If you want to know where surrogacy is legal in the United States, you should read this post: Surrogacy in the USA – Is It Legal in All 50 States?

Parentage will be defined by order that determines who the legal parent(s) of the child born via surrogacy is.

They can be:

  • Pre-birth order: Can be started in the 4th month of pregnancy, and signed by the 7th month. It is important to understand that they are not effective until the birth occurs, in spite of being issued by the court prior to the birth.
  • Post-birth order: Commissioning parents are seen in court on the 3rd or 5th day following birth.
In post-birth order states, there is typically a court hearing held after the birth of the child, and intended parents might be required to attend. Sometimes, however, court hearings are required in states offering pre-birth orders as well.

Surrogacy abroad

Children being born to US intended parents doing surrogacy overseas will acquire US citizenship from his/her parents.

According to the INA (Immigration and Nationality Act), specifically the statutory transmission requirements 301 and 309 therein, at least one US intended parent (either the mother or the father) must have a genetic link with the child for he or she to acquire US citizenship at birth.

In general, a person born outside of the United States may acquire citizenship at birth if:
The person has at least one parent who is a U.S. citizen; and
The U.S. citizen parent meets certain residence or physical presence requirements in the United States or an outlying possession prior to the person’s birth in accordance with the pertinent provision.

FAQs from users

By Dr. Joel G. Brasch (gynecologist).

In Illinois, as long as the pre-birth court order is filed and obtained by qualified legal representation, the IPs will be the legal parents when the baby is born, and no transferring of parental rights is needed.
In general, a few but an increasing number of states feature pre-birth court orders, like Illinois, while many others do not issue pre-birth court orders. Some still make establishing parentage difficult, so it is best to avoid those states when it comes to surrogacy.

What are the pros and cons of international surrogacy?

By Natalia Álvarez (project manager).

International surrogacy allows prospective parents from countries where surrogacy is not regulated or prohibited to create a family. So, a major advantage of international surrogacy is that it brings these families the chance to have a family, who would otherwise be unable to.

As for the disadvantages, probably the number of legal issues related to this practice are the main complication derived from this option. You should be well informed about the law in each country before making a final decision, including about the law in your home country. Otherwise, you may experience serious trouble, with the child being rendered "stateless" in the worst-case scenario.

Is international surrogacy an option for gay couples as well?

By Natalia Álvarez (project manager).

Yes, but they should be aware that only a few countries allow this family type to enter into surrogacy arrangements. Nowadays, foreign intended parents are advised to pursue surrogacy only in the USA and Canada, where this family structure is explicitly included in the laws.

Suggested for you

If you want to learn more about all the surrogacy process, we recommend you to read this post: Guide to the Surrogacy Process – The 7 Steps of Surrogacy .

Surrogacy legislation is very different from a country to another one. If you want to learn more about it, we invite you read this post for UK surrogacy: How Does Surrogacy Work in the UK? – Law, Cost & FAQs and this post for US surrogacy: Surrogacy in the USA – Is It Legal in All 50 States? and for a more general vision, you can read this article: Surrogacy Laws by Country – Where Is It Legal?

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