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International surrogacy: the case for reform

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The best London family and Immigration solicitors know all about the trials that some UK parents experience with international surrogacy. They therefore welcome the news that the Law Commission will look at the case for reform of UK surrogacy law.

The good news is that the Law Commission is considering ways to reduce the time taken to:
• Process applications by UK parents for registration of British Citizenship of children born overseas to international surrogates; and
• Produce British passports for children in international surrogacy cases.
The best London immigration solicitors will tell you that currently the route to parenthood through international surrogacy can be a real trial. Families can end up having to remain abroad for months while they wait for travel documents to be issued for the baby. A parent’s temporary estrangement from friends and family and from their familiar environment when they are the parent of a new baby does not help a parent cope with the anxieties that a new baby creates; from worries about nappy rash to sleeping and feeding patterns. It also does not assist with the formation of the bond between parent and baby when a parent fears that the paperwork and travel documents will not be produced and so are wary of falling in love with their new arrival.
Sadly, the Law Commission is not proposing a reform of substantive UK nationality law in international surrogacy cases. Top London family and Immigration solicitors realise the stance of the Law Commission is not surprising given the current political sensitivities over Immigration and Brexit combined with the hostile Immigration environment policy. However, the reform proposals would help parents participating in international surrogacy and so are a small step in the right direction. The proposed reforms rightly balance the need to not put children born through international surrogacy arrangements at an Immigration advantage in comparison to children born overseas and coming into the UK through international adoption.

How can OTS Solicitors help?

To speak to a member of the London based OTS solicitors children and family law team about parental orders and UK or international surrogacy arrangements, please call us on 0203 959 9123 for an initial discussion about how our expert family and Immigration solicitors can help you.

The Law Commission surrogacy proposals

The key Law Commission proposals could make UK and international surrogacy easier for would be parents through:
• The creation of a surrogacy regulator and a national register to allow children born through surrogacy to access information;
• Intended parents would become the automatic legal parents when a child is born to a UK surrogate. There would be safeguards with a requirement for the surrogate and intended parents to take independent legal advice. Under current UK surrogacy law, an intended parent has to apply to a court for a parental order after the baby’s birth. Presently, until a parental order is made intended parents do not have legal status in relation to their child. The Law Commission proposals would change that;
• In international surrogacy cases there would still be a requirement for an intended parent/s to apply to a UK family court for a parental order. However, the Secretary of State should have the power to recognise surrogacies from some overseas countries without the intended parents having to apply for a parental order in the UK. The Law Commission wants to balance making surrogacy straight forward whilst protecting surrogate parents and children from exploitation in foreign countries where surrogacy legislation does not provide adequate legal protection;
• In UK based surrogacy cases the removal of the requirement that one of the intended parents has to have a genetic link to the child;
• In international surrogacy cases, the Law Commission is not recommending a change in nationality law. Instead, the Commission proposes changes to reduce the time taken to process applications for registration of surrogate children as British citizens and to shorten the time for the production of British passports. Applications could be made prior to the child’s birth;
• In many international surrogacy cases, intended parents have to ask the Home Office to exercise discretion outside the Immigration Rules to secure a visa for their child. The Law Commission suggests that there is a clearer visa route within the Immigration Rules to reduce anxiety by providing clarity for intended parents;
• To get the Home Office to produce clear written guidance on the Immigration and nationality of surrogate children born overseas to help intended parents involved in international surrogacy understand the law and procedure.

How would the Law Commission proposals affect international surrogacy?

Top London family and Immigration solicitors emphasise that the Law Commission has only made proposals. There are no guarantees that the proposals will become UK law because:
• The proposals are out for consultation. The consultation process will end on the 27 September 2019;
• Even if there is an agreed way forward to change UK family and surrogacy law and Home Office Immigration Rules, parliamentary time will have to be found to introduce the legislative changes. With all the Brexit debates and political uncertainty, changes to UK surrogacy law may not be a government priority.
For intended parents looking to have a baby through a UK or international surrogacy arrangement the proposed changes would go some way towards simplifying the surrogacy process.

Sir Nicholas Green, chair of the Law Commission, has said:

“More and more people are turning to surrogacy to have a child and start their family. We therefore need to make sure that the process is meeting the needs of all those involved. However, the laws around surrogacy are outdated and no longer fit for purpose. We think our proposals will create a system that works for surrogates, the parents and, most importantly, the child.”
The Law Commission estimates that nearly fifty percent of parental orders in the UK are made after overseas surrogacy arrangements and thinks that the proposed reforms would reduce the demand for international surrogacy by making UK based surrogacy more attractive and straightforward.
Top London family and Immigration solicitors believe that there will always be a demand for international surrogacy and that as any changes to UK surrogacy law may be a long time in arriving the best advice remains that intended parents should get expert help on both UK surrogacy law and nationality law. That is because if a parent understands the trials that they may face before securing a parental order after an international surrogacy, the wait can be a lot easier to cope with and it is reassuring to know that you have top family and Immigration solicitors on your side.

How can OTS Solicitors help?

If you are thinking about becoming a parent via a surrogacy arrangement, then whether the surrogate is based in the UK or abroad, it is important to get specialist surrogacy law advice from a top London family solicitor. If you are using an international surrogate OTS Solicitors can provide seamless nationality law and Immigration advice.
To speak to a member of the London based OTS solicitors’ children and family law team about surrogacy arrangements and parental orders please call us on 0203 959 9123 for an initial discussion about how we can help you.

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