Getting U.K. citizenship for the baby

Couples seeking U.K. citizenship for their babies have often spent 3 months in India before completing the necessary approvals and paperwork to bring their baby home.  It is important to understand the legal requirements to get your baby's citizenship. 

The London Evening Standard had a short Q&A on surrogacy which included the following:

What are the risks (of surrogacy abroad)?
Agreements are not legally enforceable and a surrogate mother has the right to refuse to hand over the baby if she changes her mind. Also, couples only gain parental rights over the child if they successfully apply for a parental order after six weeks. At this stage the surrogate relinquishes all her rights over the child. An additional complication with foreign surrogacy is that children born in another country could effectively be stateless.

Why would they be stateless?
They are neither recognised as Indian nor as British in the eyes of a court.

Has a British couple ever had problems?
Yes. Last December, a couple whose twins were carried by a surrogate in the Ukraine won a year-long battle over paternity.
Why did they have to go to court?

They had been unable to conceive so used a donor egg which was implanted into the Ukrainian surrogate. But only the husband was recognised as the parent, not his wife.

What happened?
Home Office officials allowed the babies entry to the UK and the couple were awarded parenthood. However the case is regarded by lawyers as a cautionary tale for anyone looking to “hire a womb” abroad.

The best description of requirements to get U.K. citizenship for a baby born through surrogacy in India is at http://1in640715.yuku.com/topic/382.  It states:

If you wish your baby to be a British Citizen you will need to apply to register your baby under section 3(1) of the British Nationality Act 1981. To do this you should contact the British Deputy High Commission in Mumbai who will be able to advise you on the application, including the documents you should include, provide the form (MN1) for you to fill in and forward the application to the Home Office in the UK.

Once your baby is born you will need to apply for a Parental Order (PO) under Section 30 of the Human Fertilisation & Embryology Act 1990. This transfers the legal rights to you as the intended parents. To qualify for a PO, you must be over 18, married to one other, domiciled in the UK and at least one of you must be genetically related to the baby. You can apply for a PO once your baby is 6 weeks old, and must apply before they are 6 months old. You may find it easier to employ a solicitor in the UK to assist you with this process. The website www.surrogacyuk.org has more details on applying for a PO.

Surrogacy UK also has a good description of the process required for U.K. citizens and some of the potential pitfalls.

If you are a UK couple considering conceiving with a foreign surrogate, you need to take care over conflicts of law on parenthood, and the rule against paying more than reasonable expenses.  Some foreign systems of law allow the intended parents to acquire parenthood status automatically, either through a foreign court process (such as a Californian pre-birth order) or simply by allowing them to be named on the birth certificate (as in India).  However, if you are domiciled here, English law will apply to you which means that you may not be regarded as your child’s legal parents (including for the purposes of entry clearance and citizenship, which can prevent you bringing your child home). 

The solution is for you to apply for a parental order, but if you have paid for a commercial surrogate, this may be difficult.  Most foreign surrogacy arrangements involve a commercial element, but under UK law this will mean that you will have to ask the court to authorise your payments before a parental order will be granted.  This is likely to involve an application to the High Court, and the court will weigh up very carefully the particular circumstances of your case in order to decide whether it should make an exception to the UK’s public policy against commercial surrogacy.

It is wise to seek legal advice before embarking on any international surrogacy arrangement.

The U.K. passed a new parenthood law effective April 6th, 2009.  The HFEA has a FAQ on the law here.   

How does the new parenthood law affect surrogacy arrangements?

The new parenthood law does not change the fact that the woman who gives birth to the child is the legal mother when the child is born.

If the surrogate is married or in a civil partnership, her husband or civil partner will be the legal father or second legal parent of any child born – unless it is shown that the he/she does not consent to the treatment.

If the surrogate has a partner with whom she is not married to or in a civil partnership, the partner must have consented to being the father/second parent of any child born as a result of treatment in order to be legally recognised as such. The surrogate must have also consented to her partner being recognised as the father/second parent.

If the surrogate is single or has a partner who does not wish to be the father/second parent, the new parenthood law makes it possible for the intended father/second parent to be the legal father/second parent upon birth of the child – but only where they have not provided sperm for the treatment. Both the surrogate and the intended father/second parent will need to consent to this.

As is currently the case, if the intended father has provided sperm for the treatment of the surrogate, he will need to register as a donor and therefore cannot be the father upon birth of the child. If the intended second parent has provided eggs for the treatment of the surrogate she will need to register as a donor but she can also become the legal second parent if the relevant consents are in place.

As is currently the case, the Parental Orders (Human Fertilisation and Embryology) Regulations 1994 and (in Scotland) the Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994 provide that parental rights and obligations in respect of surrogacy arrangements may, provided certain conditions are met, be transferred from the birth parents to those who commissioned the surrogacy arrangement.

From April 2010 it will be possible for civil partners and two persons who are living as partners in an enduring family relationship (as well as married couples) to apply for a Parental Order (providing that certain conditions are met).

Patients seeking a surrogacy arrangement should seek legal advice.

Additionally:

Information about surrogacy arrangements where the child is not born in the UK.

In proposed surrogacy arrangements, the commissioning couple might not be able to apply for a Parental Order for a number of reasons e.g. they are not married to each other, or neither of them are domiciled in the UK. If the commissioning couple is ineligible for a Parental Order, then the only way in which they can acquire legal parenthood is through adoption.

If the child is born abroad, provided that the commissioning couple are domiciled in the UK, they
may apply for a Parental Order.

It is important that patients considering this an option seek their own legal advice before going ahead.

UK law treats everyone as having a domicile of origin from birth; where the parents are married this will be the domicile of the father. Domicile cannot be lost by going abroad for a holiday, or to stay for a period of time, unless there is no intention of returning to the country of domicile. A domicile of choice can be acquired through a combination of residence and intention to reside permanently in another country which will replace a person’s domicile of origin. If there is in any doubt as to whether this condition can be satisfied, a specialist immigration lawyer should be consulted or alternatively the Home Office may also be able to assist.

Immigration:

If the child is born abroad, the commissioning couple will need to apply for a visa to enable the child to enter the UK while the application for a Parental Order is being processed. Referral to the Home Office is necessary in all cases.

The InfertilityNetworkUK has a paper on Surrogacy in the U.K which states (this is geared more toward surrogacy carried out within the U.K., although it applies to births outside the U.K as well.):

In order to carry out a legal surrogacy in the UK you must be able to apply for a Parental Order.  Applying for a Parental Order a very simple process. Although you do not need a solicitor, some people like to have the peace of mind of employing one.
 
To be granted a Parental Order the Intended Parents must be:
·          Over 18
·          Married to one another (a civil ceremony is not classified in law as a marriage)
·          Domiciled in the UK
·          At least one of the applicants must be genetically related to the child
 
The Intended Parents can apply for a Parental Order once the child has reached 6 weeks of age, but must apply before the child reaches 6 months.

For the most current information about requirements and procedures, contact the British Deputy High Commission in Mumbai directly. 

Do your research and seek legal advice.