What to consider before beginning your international surrogacy journey

International surrogacy arrangements are becoming increasingly common due to the difficulties in embarking on surrogacy arrangements in the UK. The recent case of Re Z (Foreign Surrogacy) [2024] EWFC 304 concerned an application for a parental order in relation to a child, aged one, made by two same-sex civil partners, who engaged a surrogacy agency based in Cyprus, but wished to be recognised as legal parents of the child in the UK.

Same-sex surrogacy arrangements were not permitted in the country where the surrogate came from, or that in which the child was born. While the case involved a multitude of complexities, ultimately the court emphasised the need for security and stability for the child, and granted the parental order, recognising the intended parents as legal parents.

In her judgment, Mrs Justice Theis warned about the importance of fully understanding the legal implications of the process and provided a helpful checklist for those embarking on surrogacy arrangements, to help safeguard against the risks associated with international surrogacy arrangements, as the case involved multiple jurisdictions.

The following list is non-exhaustive and can only act as a guide:

1. Is a surrogacy arrangement permitted in that country?
2. When the child is born will the intended parents be recognised as parents in that country, or are they required to take certain steps to have this formally recognised?
3. What is the surrogate’s legal status regarding the child at birth?
4. If the surrogate is married at the time of the embryo transfer and/or the child’s birth what is the surrogate’s spouse’s legal status regarding the child at birth?
5. If an agency is involved, what role do they play in matching the surrogate with the intended parents?
6. What information, preparation or support has the surrogate had about any proposed surrogacy arrangement?
7. Does the surrogate speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed?
8. Will the intended parents and the surrogate meet and/or have contact before deciding whether to proceed with a surrogacy arrangement?
9. When will the agreement between the intended parents and surrogate be made, before or after the embryo transfer, and what are the reasons for it being at that time?
10. What arrangements are proposed for contact between the intended parents and the surrogate during the pregnancy and/or after the birth? For example, is it only via the agency or can there be direct contact between the intended parents and the surrogate.
11. Which jurisdiction will the embryo transfer take place and which jurisdiction will the surrogate live in during any pregnancy?
12. Can the jurisdiction where the child is to be born be changed at any stage and, if so, by whom and in what circumstances?
13. What nationality will the child have at birth?
14. Following the birth of the child what steps need to be taken for the child to travel to the United Kingdom, what steps need to be taken to secure any necessary travel documentation for the child and how long does that take?
15. Will the intended parents need to take any separate immigration advice to secure the child’s travel to the United Kingdom and what is the child’s status once the child has arrived in this jurisdiction?
16. Finally, keeping a clear and chronological account of events and relevant documents is not only important for the purposes of a parental order application but also, importantly, to retain key information regarding the child’s background and identity.

The Birketts view

The case emphasised the importance of seeking independent legal advice before entering into surrogacy arrangements. The Birketts Modern Families Team includes expert advisors who are able to provide advice beyond just family law. From the outset, we are able to offer guidance on various issues such as immigration, tax implications, and the leave entitlements of intended parents from their employers. If you have any questions relating to surrogacy arrangements, please contact Molly Barker or another member of the Birketts Modern Families Team.