Surrogacy and British Nationality

Establishing whether or not someone born on or after 1 January 1983 is a British citizen, or may be registered as a British citizen, can be a complex process – not least because the nationality of at least one of the parents also needs to be established. When that person is born through a surrogacy arrangement matters can become more complex, particularly when the surrogacy arrangement includes an overseas element.

In the words of the Foreign Office: “International surrogacy is a complex area. The process for getting your child back to the UK can be very long and complicated, and can take several months to complete. … If you are considering embarking on surrogacy in a foreign country we strongly recommend that you [read the FCO guidance] and that you seek specialist legal advice in the UK and in the country you are travelling to before making any arrangements.”

This article, the first in a series providing a brief overview of some of the issues that can arise in surrogacy cases, considers the question of who is a parent for the purposes of British nationality law.

Mother

Section 50(9) of the British Nationality Act 1981 (“the 1981 Act”) states that, for the purposes of the 1981 Act, a child’s mother is the woman who gives birth to the child. There is currently no provision for any other person to be treated as the child’s mother.

As a result a child born in consequence of a surrogacy agreement can only obtain British nationality through their mother if the woman who gave birth to them (“the Surrogate Mother”) is a British citizen; however other matters, such as the identity of the egg donor (if any), judgments from a competent court in another country with regard to the identity of the mother for the purposes of the law of that country, and the absence of Surrogate Mother’s name from the child’s birth certificate are, strictly speaking, irrelevant – although each of these matters would need to be addressed, and may give rise to further evidential issues, in the event of an application.

Father

Identifying the father is a much more complex issue, with different provisions being applicable depending on the date of birth and / or conception. Indeed, it may well be that for the purposes of British nationality law the child has no father.

The Surrogacy chapter in the British Nationality Instructions (“the Surrogacy Policy”) published by the Home Office (which largely reflects the relevant statutory provisions) states that children born to a Surrogate Mother before 1 July 2006 will not have a father for the purposes of British nationality law unless:

• The Surrogate Mother was married at the time of birth; and
• Her husband consented to her receiving the relevant treatment.

The Surrogacy Policy goes on to state that the father of children born on or after 1 July 2006 is either:

• The man (if any) to whom the Surrogate Mother was married at the time of birth (with no reference to his consent); to the child; or
• The man (if any) together with whom the Surrogate Mother received treatment services (from a licensed person) for relevant services, as long as the embryo was not brought about with that man’s sperm; or
• A person who is proven to be the father by a qualifying birth certificate issued within 12 months of the date of birth naming that person as the father or other compelling evidence such as a DNA report.

Option 3 is not available if a man is identified as the child’s father under Option 1 or 2; however both the policy and the 1981 Act are silent on what happens if more than one person can be identified as a father under Option 1 and 2. Equally, even if Option 3 is available it may be that no person is proven to be the father – for example if there is no father named on the birth certificate.

For children conceived on or after 6 April 2009 an additional Option 2A is included so that a woman, who is not the Surrogate Mother, who is treated as the child’s parent under section 42 or 43 of the Human Fertilisation and Embryology Act 2008 is considered to be the father for the purposes of the 1981 Act.

For children born on or after 10 September 2015 “proving paternity” under Option 3 means proving that the person is the child’s natural father. While it therefore remains possible to provide a birth certificate issued within 12 months of the date of birth this can no longer be relied upon as being sufficient; further evidence, including a DNA report, may well be necessary. It may be that a DNA report is readily available in surrogacy cases; however this will of course be fact specific.

For reasons referred to here, if the child is born outside the UK and Islands then consideration will also need to be given to the manner in which the relevant parent obtained their British citizenship.

If the child is not a British citizen at birth under the above provisions it may be that other steps can be taken to secure British citizenship for the child. By way of 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 be a British citizen if one of the adopters is a British citizen.  A Parental Order in favour of the commissioning couple in a surrogacy arrangement under section 54 of the 2008 Act will, if granted, have the same effect as it will be treated as an adoption order for the purposes of section 1(5) of the 1981 Act.

Whether an Adoption Order or a Parental Order is appropriate in any particular case will be a matter of family law, which is outside the scope of this article.

Alternatively, section 3(1) of the 1981 Act provides the Secretary of State with a discretion to register any child as a British citizen, no matter where or when that child was born. The only statutory requirements are that an application must be made while the child is a minor (i.e. under 18) and, if over 10 years of age, the child must be of good character. This is a discretionary application and the vast majority of children who could theoretically apply (i.e. any child anywhere in the world) would be refused, not least because they and their families have no connection with the UK at all. Although there will always be a residual discretion not to follow the policy in any given case, decisions on these applications should always be made by reference to published Home Office policies in the first instance. Chapter 9 of the British Nationality Instructions sets out how the relevant discretion is likely to be exercised in most cases and specifically addresses the issue of surrogacy. Chapter 9 distinguishes between cases where the (British citizen or settled) man in a commissioning couple is, and is not, biologically related to the child, and also addresses cases where the woman in a commissioning couple is a British citizen or settled in the UK.

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If you would like further advice regarding British nationality please contact Richmond Chambers Immigration Barristers.