International surrogacy – know your surrogate

When you embark on international surrogacy, it is important to consider the following before deciding on a choice of jurisdiction:

• Do your due diligence:
  • Keep a clear chronology of events, including your research into different jurisdictions, contact with agencies, surrogate matching and contact.
  • Do they have a legal framework which deals with Surrogacy – if so, then there are likely to be legal protections in place for all parties involved – namely the surrogate, the resulting child/ren and the intended parents.
  • Is there a risk of exploitation – do research and ask other intended parents. 

• Ensure that you understand the process being promised by the agency.
• Obtain legal advice from a qualified, and independent, lawyer in that country to understand the legal framework (including whether it is legal for you to engage in surrogacy in that country and if you are recognised as the legal parents), to advise on the contents of any contract or documentation with an agency and also, immigration advice i.e. how to obtain the correct documentation to travel back to the UK with the child/ren post birth and timescales.
• It is also important to obtain legal advice in the UK both regarding the Parental Order application and process, as well as immigration advice to ensure that the child/ren can return to the UK and have leave to remain.
• How much contact will you have with the surrogate? Irrespective of the process in the country of your choice, when the child/ren are returned to the UK the intended parents need to apply for a Parental Order to be recognised as the legal parents. Part of that application requires the surrogate to provide her consent, which cannot be given until 6 weeks after the birth. If you have had no contact with the surrogate, then you will not be able to contact them for this consent, and the agency may not be forthcoming in assisting you with this. 

In some countries, surrogacy agencies control the level of contact between intended parents and their surrogate which can result in it being very much limited or even non-existent. The case of B and C -v- D and H 2025 highlights this particular issue. In this case, the intended parents underwent surrogacy in Nigeria, they had not met the surrogate and had no information (other than her initials) regarding her identity. The consequences of this were:

• Immigration Delays

The Home Office rejected the child’s Certificate of Entitlement for the child to live in the UK on the basis of the surrogate’s anonymity, as basic details (including the surrogate’s marital status) could not be provided. This significantly delayed the child’s return to the UK. 

• Parental Order Process Delay

It took over 15 months and required 4 court hearings to determine the application. The intended parents submitted 4 witness statements and, because of the complexity the child was joined to the proceedings, via a Guardian. 

Both caused uncertainty and distress to the child and the intended parents. Mrs Justice Theis comments in this case, that: “Put simply, intended parents should avoid embarking on a surrogacy arrangement where they do not meet, have any knowledge of or means of contacting the surrogate who carries their much wanted child.”

Advice that should be taken seriously. 

At Irwin Mitchell our specialist surrogacy lawyers can provide you with specialist legal advice throughout the process.