Family creation through surrogacy is growing in popularity. Altruistic surrogacy is now recognised as a mainstream family building option in the UK and supported by guidance from the Department of Health and Social Care.
However, surrogacy is prohibited or restricted in many countries for social, religious, legal and ethical reasons. As such, some intended parents cross borders to access surrogacy in other jurisdictions where it is permissible, creating complex legal and practical issues as the real life case study (spanning the US, Denmark and the UK) below demonstrates.
Case study: surrogacy in the US
I recently acted for an intended parent couple who decided to build their family through international surrogacy in the US. Dad one was a British citizen in his 40’s and he moved to Denmark to be with dad two, a Danish citizen in his 50’s.
They discovered that they were ineligible to adopt in Denmark because of Danish dad’s age. They therefore entered into a surrogacy arrangement in Oregon in the US in 2017 where they successfully conceived twins using British dad’s sperm and donor eggs.
Although the twins were born 8 weeks’ premature and spent an extended period of time in hospital, they were able to obtain US citizenship and passports for the twins, US parentage orders in Oregon recognising them as legal parents and travel home to Denmark.
They then successfully registered the twins at their local Danish town hall, naming both dads as parents and obtained Danish citizenship and passports for the twins, so all seemed fine.
A year later in 2018, the dads decided to expand their family and have another child. This time they entered into a Californian surrogacy arrangement, conceiving a daughter with British dad’s sperm and a donor egg.
All went well with the pregnancy, birth and the US legalities, resulting in the dads obtaining a Californian pre-birth order recognising them as legal parents. They then travelled home to Denmark as a family of five, expecting to register their youngest daughter with the Danish authorities as they had done so with the twins. This is when their legal problems as a family started.
Case study: surrogacy law in Denmark
When the dads tried to register their youngest daughter’s birth in 2019 in Denmark, they were told that the twins had been registered in error and it was not possible to confer Danish citizenship and legal parentage upon their children as they were born through surrogacy.
They discovered that under Danish law, the biological father (British dad) is the legal parent along with the surrogate mother (despite her having no legal parentage in the US), meaning that Danish dad had no legal parental status in Denmark. Then they were informed that they could not register their youngest daughter in Denmark.
To make matters worse, the Danish authorities then opened an investigation into their family, rescinded the twins’ Danish citizenship and passports and convened a meeting in December 2020 to discuss deporting their children from Denmark.
This all came as a massive shock to the intended parents because they had thought that their US parentage orders would be legally recognised elsewhere in the world.
On 16 December 2020, the dads attended a meeting with the Danish authorities and were told that their children’s deportation would be put on hold for 90 days pending a decision. The dads had applied for British passports for their children but these had initially been refused.
With urgent expert legal assistance, they managed to get the children registered as British citizens later the same day. This meant their children acquired permanent rights of residence in Denmark just 14 days before the UK left the European Union on 31 December 2020.
Thereafter, British dad and the three children applied to renew their permanent rights of residence in Denmark post Brexit. British dad’s residence application was not granted until four months later, whilst the children’s rights of residence in Denmark took a further nine months and required a legal determination by the Danish Family Court.
Case study: surrogacy law in the UK
As a result of the family’s serious and worrying legal problems in Denmark and a homophobic attack against British dad, they relocated to the UK in October 2021. The dads obtained expert surrogacy law advice in the UK and were advised that they needed to obtain parental orders in the English Family Court to obtain legal parentage for their children because their US parentage orders were not legally recognised in the UK.
This meant that the family had to go through yet another legal process. Accordingly, the dads issued parental order applications for their children in the English High Court. In doing so, they encountered further complex legal issues.
Firstly, surrogacy statute in the UK dictates parental order applications must be made within six months of a surrogate born child’s birth (the twins were four and their younger sister was aged two by this time).
Secondly, British dad had been charged with assault on a police officer whilst being arrested following the homophobic attack and criminal proceedings were still pending against him in Denmark.
Thirdly, their first US surrogacy agency had ceased operating following embezzlement by a member of staff and this meant they were unable to obtain copies of all their surrogacy documentation or evidence all of their surrogacy payments in respect of the twins.
Ultimately, the English High Court Judge granted parental orders for all three children in respect of both British dad and Danish dad. The Judge exercised discretion to extend the six-month legal deadline for issuing parental order applications post birth following careful assessment of the case.
The Judge ruled that it was in the children’s best interests to resolve their legal parentage and that they needed legally secure arrangements for their care in the UK. In doing so, the Judge explained that this had been possible because the dads had acted with integrity throughout the surrogacy process and done their best to comply with the various legalities.
The Judge also accepted that the history of the Danish registration and citizenship difficulties starkly illustrated how vulnerable the children were if parental orders were not made that had legal force in the UK.
So overall, this case had a positive legal outcome for the family.
Specialist surrogacy law advice:
However, this case highlights the importance of obtaining specialist surrogacy law advice because there is no international harmonisation of surrogacy law.
In the absence of expert legal advice and representation, surrogate born children can be left with unresolved legal parentage, serious citizenship and residence difficulties and even face deportation.
As the UK’s leading expert in surrogacy law, I provide a range of specialist legal services to support intended parents, children and surrogates throughout their surrogacy journeys including:
- Parental order applications in the English Family Court to confer legal parentage on intended parents and surrogate born children.
- Acquisition of British birth certificates for surrogate-born children bearing the names of
- Obtaining parental responsibility for surrogate born children to give legal decision making powers to their intended parents.
- Legally securing arrangements for the upbringing of surrogate born children in the UK (e.g. a child arrangements order recording that the child resides with their intended parents).
- Resolving surrogacy disputes and complex international conflicts of law.
- Providing expert witness legal services to support claims for surrogacy, donor conception and fertility treatment following medical negligence.
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