10 May 2018 sees the official launch of the LexisNexis publication ‘Surrogacy, Law, Practice and Policy in England and Wales’ . The book is an essential guide for those advising on surrogacy law.
The book is edited by Ruth Cabeza of Field Court Chambers and she has been ably assisted by fellow barristers from her chambers and Lillian Odze of the Cafcass High Court Team.
I am the author of the chapter ‘International Surrogacy and British Nationality and Immigration Law’.
The book is an important step towards informing both advisors and parents as to the British nationality and immigration law issues that arise in international surrogacy cases. Given the restriction on commercial surrogacy arrangements in the UK, UK-based commissioning parents frequently enter into international surrogacy agreements which lead to the birth of their children abroad. The birth of a child outside the UK inevitably leads to questions concerning British nationality and immigration law.
The fact that there is any nationality or immigration issue at all can come as something of a shock to many commissioning parents. Those who are British from birth have often not come into contact with the British nationality and immigration system before and understandably assume that their child will be born British whatever the circumstances.
Furthermore, British nationality law will often be at odds with the law in which the child will be born. In that country, the British commissioning parents may be the legal parents at the date of birth and named on the birth certificate. This does not mean that they will be the parents for the purposes of British nationality law.
Commissioning parents are well-advised to consider the immigration and nationality matters in advance. Ideally, they should take immigration and nationality law advice before entering into the surrogacy agreement. That said, there is an immigration and nationality law solution to most situations and parents who obtain advice during the pregnancy can usually prepare in time for the birth. We can, of course, also give initial advice after the birth but parents are well-advised not to leave obtaining advice until then.
In my chapter, I have set out the different circumstances that can arise and the immigration and nationality law solutions. The aim is to have these issues more widely known. Of course, we remain happy to advise parents on their particular case.