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Comment | Solicitor Linda Lamb on difficulties choosing surrogate mothers abroad

Many families are choosing overseas mothers to be surrogates due to a shortage in the UK

2018-09-11

As more and more people are choosing surrogate mothers abroad, Linda Lamb, a solicitor and Director of LSL FAMILY LAW, has provided a detailed list of things to consider to prevent any problems with overseas surrogacy.

Many couples are choosing surrogate mothers abroad, due to a shortage of surrogates in the UK and our laws being ill-equipped to help couples use surrogates.

In the UK surrogates can only be paid expenses at a level that the court decides is reasonable, it cannot be a commercial transaction, contracts are unenforceable, leaving couples desperate to have children going abroad to foreign countries.

It’s clear our laws are not catching up with societal change and keeping up with modern families.

Although some countries are more equipped - offering surrogacy clinics and legally enforceable arrangements - not all foreign countries allow surrogacy and some have unregulated systems leaving parents-to-be at risk – from being extorted for money to a surrogate vanishing with their child.

What’s important to remember is that under UK law the birth mother is the legal parent as is her husband or civil partner if they consented to the surrogacy.

There can also be immigration issues when trying to bring your child back to the UK

That’s why it’s paramount for couples to not only check immigration rules when bringing a child back to the UK but to obtain parental recognition in the form of a Parental Order.

You must be genetically related to the child (through egg/ sperm donation) and you and your partner should be otherwise living as partners, in a civil partnership, or married.

If the legal parents refuse to consent to the Parental Order the court cannot enforce the surrogacy contract and so cannot make the Parental Order.

You must have the child living with you and reside permanently in the UK, Channel Island or Isle of Man. If there is no genetic link you must both apply for adoption.

Here are a few things to consider to prevent problems when using a surrogate abroad;

1.    Before you start seek specialist legal advice about surrogacy and also the ability to get the child back into the UK

2.    Once you choose the country of where you will be using a surrogate also obtain legal advice for the country where the child will be born

3.    Ensure that you use a reputable surrogacy organisation - do your research

4.    If the country chosen will issue the child with a passport this will avoid delay waiting for a British passport to be issued.

5.    Get to know as much as possible about the surrogate – for example health, lifestyle and her economic circumstances

6.    Get a surrogacy agreement carefully drafted

7.    Seek counselling for the surrogate and you – all will need the emotional support

8.    Legal advice for the surrogate to make sure they understand the terms of the agreement

9.    Ongoing contact with the surrogate during the pregnancy will build trust

10. In the UK you will need a Parental Order / go through adoption to be recognised as the parents