Surrogacy, Adoption and Children’s Immigration Status
People turn to surrogacy and/or adoption in the UK or overseas in order to start or expand their families. The immigration status of a child born through surrogacy or adoption will depend on a variety of factors such as who their parents are and their nationality, where and when the child was born, where and when they were adopted, their type of adoption etc. This article will explore the immigration status of children who are born through surrogacy and/or adoption.
Surrogate Children
Who are the legal parents?
Please note that the definition of legal parents in terms of nationality law is very strict and binary and may not reflect the realities of parental arrangements in place.
Pursuant to section 50(9) of the British Nationality Act 1981, the legal ‘mother’ of a child is the person who gives birth to the child. In a surrogacy arrangement, the surrogate mother will therefore be the legal mother of the child. There is no provision for anyone else to be considered the legal mother of a child.
The legal ‘father’ of a child will depend on the child’s date of conception and/or birth.
As set out in the Home Office guidance, ‘Nationality policy: surrogacy’, for a child born to a surrogate mother before 01 July 2006, the legal father under nationality law will be the surrogate mother’s husband or male civil partner at the time of the child’s birth, if he consented to her receiving treatment. Otherwise, there will be no legal father.
For a child born through surrogacy on or after 01 July 2006, the legal father will either be:
- The man to whom the surrogate mother is married to at the time of the child’s birth;
- The man with whom the surrogate mother has received treatment services from a licenced person – if the embryo was not brought about with that person’s sperm; or,
- If no father has been identified under the first two options, the person proven to be the father of the child by a qualifying birth certificate issued within 12 months of the date of the child’s birth or other compelling evidence such as a DNA report or court order. For children born on or after 10 September 2015, the person must be proven to be the natural father.
For a child conceived on or after 06 April 2009, a person who is not the surrogacy mother, who is treated as the child’s parent under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, or a ‘second female parent’ as referred to in the guidance, can also be considered to be the father.
Under nationality law, it is possible for a child not to have a legal father.
When is a child automatically British?
A surrogate child can automatically obtain British citizenship at birth if they are born in the UK and either of their legal parents are a British citizen or if they are born outside the UK and either of their legal parents are a British citizen other than by descent.
When can a child register as British?
If the child is not automatically British, there may be other options for the child to become British by registration by applying shortly after their birth, or they may become eligible at a later date.
Under section 3(1) of the 1981 Act, the Secretary of State has discretion to register any child as British while they are a minor, no matter where or when they were born. They should usually have a close connection with the UK. The good character requirement will apply to children aged 10 or over at the date of application. Please note that the Home Office guidance, ‘Nationality: good character requirement’ was updated on 31 July 2023, as will be addressed in a separate article.
The Home Office guidance, ‘Registration as a British citizen: children’, states that in most cases the commissioning couple in a surrogacy arrangement will have no legal relationship to the child and will therefore be unable to pass on the benefits of British citizenship automatically. The guidance sets out how discretion should normally be exercised in relation to children born through surrogacy.
What happens if a child is not British?
If a surrogate child is not or cannot apply to become a British citizen, and the child is outside of the UK, the child’s parents could apply for an entry clearance visa to enable the child to enter the UK. In order to apply for such a visa, one of the intended parents should be genetically connected to the child. They will need to provide their child’s ID and genetic confirmation of their relation to the child. Once the child is in the UK, the intended parents could then apply for a Parental Order.
A Parental Order can be made in favour of a commissioning couple, the intended parents, in a surrogacy under section 54 of the Human Fertilisation and Embryology Act 2008, which is similar to the process of adoption. A Parental Order transfers legal responsibility of a child from the legal parents to the intended parents. A surrogate parent can only give consent to this six weeks after the child’s birth and the order must be applied for within six months of that consent being given. Once a Parental Order has been granted, the child could be considered to be a British citizen, when one of the intended parents is British.
Please note that a surrogacy arrangement cannot be enforced by law in the UK. Due to the legal complexities arising from surrogacy arrangements, particularly in terms of nationality law, the Foreign and Commonwealth Office recommends that people considering surrogacy
should read their guidance and seek specialist legal advice in the UK and the country in which they are considering the arrangement, if applicable, before entering into any arrangement.
Please note that we can only advise on matters of UK immigration law.
Adopted Children
When is a child automatically British?
Adoption in the UK
Pursuant to Sections 1(5) and 1(5A) of the British Nationality Act 1981, where a court in the UK or in a qualifying territory makes an order authorising the adoption of a minor who is not a British citizen, the minor will be a British citizen from the date of the order if the adopter or one of the adopters is a British citizen.
Overseas Adoption
Further to the same sections, where a minor who is a not a British citizen is adopted under a convention adoption (see below), they will be a British citizen from the date the adoption is effected if both the adopter or one of the adopters is a British citizen and the adopter or both of the adopters are habitually resident in the UK or in a designated territory.
Pursuant to section 50 of the British Nationality Act 1981, a ‘convention adoption’ is an adoption:
- Effected under the law of a country or territory in which the Hague Convention on Protection of Children and Co-operation in Respect of Intercountry Adoption 1993 is in force at the time of the adoption; and,
- Certified under Article 23(1) of the Convention by a competent authority as having been made in accordance with the Convention.
If an overseas adoption meets the requirements to qualify as a convention adoption, the adoption shall be recognised by operation of law in the other states that have ratified the Convention.
When can a child register as British?
As set out above, children who are not automatically British can apply to be registered as such. For example, section 1(5) of the 1981 Act provides that where a court in the UK makes an order authorising the adoption of a minor who is not a British citizen, that child shall become British if one of the adopters is a British citizen.
The Home Office guidance, ‘Registration as British citizen: children’, sets out the special considerations when registering children adopted abroad. Pursuant to this guidance, caseworkers must only register children adopted overseas by a British citizen in countries or territories whose adoption procedures are recognised in the UK. Those countries and territories include those listed in:
- The Adoption (Recognition of Overseas Adoptions) Order 2013;
- The Adoption (Recognition of Overseas Adoptions) (Scotland) Regulations 2013; and,
- The Hague Convention on intercountry adoption.
If the adoption took place before 03 January 2014, the relevant list of countries and territories is the designated list of Adoption (Designation of Overseas Adoptions) Order 1973.
If some or all of the following criteria is not met, the caseworker must only register the child if there are exceptionally compassionate or compelling circumstances:
- The adoption is not informal or temporary;
- Under the law of the country where the adoption took place the child is the child of the adoptive parents alone and the legal relationship with the birth family has been completely terminated;
- At least one of the adoptive parents is a British citizen otherwise than by descent;
- The current parent(s) have consented;
- There is no reason to refuse on character grounds;
- The caseworker is satisfied that all relevant adoption laws have been adhered to, this includes the laws of the country in which the adoption has taken place, the country of origin of the child and the country in which the adoptive parents are habitually resident;
- The caseworker is satisfied the adoption is not one of convenience arranged to facilitate the child’s admission to the UK.
Children can also be registered as British by discretion under section 3(1). The Home Office guidance sets out how this provision applies to the registration of adopted children.
What happens if a child is not British?
If an adopted child is not or cannot apply to become a British citizen, they will require leave to enter and remain in the UK. They will need to apply for such leave, under Part 8 of the Immigration Rules, as will be set out in a subsequent article.
Contact our Immigration Barristers
For expert advice and assistance in relation to immigration matters related to children born through surrogacy and/or adopted, such as British citizenship applications or any other UK immigration applications, contact our immigration barristers in London on 0203 617 9173 or complete our enquiry form below.
