Pre-Journey Checklist for Intended Parents Using International Surrogacy Arrangements

There has been a recent flurry of cases through the Court in England and Wales whereby same-sex couples utilising international surrogacy arrangements have encountered significant problems with having their baby placed with them after birth and bringing them back to the United Kingdom. Further details about these legal developments can be found in Eleanor Tanner’s previous blog post here.

These caselaw developments have highlighted the importance for intended parents to carry out proper research and consider all of the relevant regulations and legal processes, both in England and Wales and abroad, before embarking on an international surrogacy journey. 

Let us imagine that a same-sex couple, John and Nick, wish to engage a surrogacy agency abroad to have a baby. They have found a surrogacy agency abroad and intend to use a surrogate, Mary, to carry their baby. What will they need to consider? 

Very helpfully, Mrs Justice Theis DBE provided some helpful guidance on specific points that intended parents should inform themselves of prior to entering into these sorts of arrangements. The guidance is set out in her judgment in the case of Re Z [2024]* and the recommended considerations are as follows (though this is not an exhaustive list):

1. What is the relevant legal framework in the country where the surrogacy arrangement will take place and where birth will take place (accounting for the framework in both countries if the fertility treatment and birth will take place in different countries)? Is this sort of arrangement permitted in those countries (not solely, but particularly in relation to John and Nick being a same-sex couple)? 

2. When the child is born, who will be recognised as their legal parent(s) in that country and how? Will this be by law, or by pre- or post-birth steps? If by pre- or post-birth steps, what steps need to be taken by John, Nick and Mary? 

3. What will be Mary’s legal rights regarding the child at birth, in the country where the child is born? 

4. If Mary is married/in a civil partnership at the time of conception and/or the child’s birth, what will her spouse’s/civil partner’s legal rights towards the child be? 

5. If a surrogacy agency is involved, what role are they playing in matching Mary (or any other surrogate) to John and Nick?

6. What information, preparation or support has Mary had about any proposed surrogacy arrangement? 

7. Does Mary speak and/or read English? If not, what arrangements are in place to enable her to understand any agreement signed? 

8. Will John and Nick meet and/or have contact with Mary before deciding whether to proceed with the surrogacy arrangement? 

9. When will the agreement between John and Nick and Mary be made? Before or after the embryo transfer? What are the reasons for this? 

10. What arrangements are proposed for contact between John and Nick and Mary during the pregnancy and/or after the birth? Will it only be via the agency, or can there be direct contact?

11. In which country will the fertility treatment take place? In which country will Mary live during her pregnancy? 

12. Can the country where the child is to be born change at any stage and, if so, who can make this change and in what circumstances? 

13. What nationality will the child have at birth? 

14. Following the birth of the child, what steps do John and Nick and Mary need to take for the child to travel to the United Kingdon? What steps need to be taken to secure travel document for the child? How long will this take?

15. Will John and Nick need to take any separate immigration advice to secure the child’s travel to the United Kingdom? What will the child’s immigration status be on arrival in the United Kingdom? 

16. John and Nick will need to keep a clear and chronological account of events and relevant documents, as this will be important to obtain a parental order and maintain key information about their child’s background and identity. 

The above guidance clearly sets out how important it is for John and Nick, or any other UK-based intended parents, to take independent legal advice before entering into a surrogacy arrangement outside of the United Kingdom. Early legal advice is key to a smooth surrogacy journey, making the journey to parenthood via this route as seamless and joyful as possible. 

For early legal advice from our surrogacy law expert Eleanor Tanner, contact our team for a free 45-minute consultation.

*[2024] EWFC 304