Consultant Pamela Collis considers the perils faced by couples involved in international surrogacy arrangements now in her blog “International Surrogacy and COVID-19 – Stranded Abroad?”

International surrogacy is always stressful and complicated, if hugely rewarding. The most common problems for British surrogate parents relate to ensuring they are parents under English law, and ensuring their child is entitled to be brought into the UK. The COVID-19 crisis has made this even more difficult.

Depending on where the international surrogacy arrangement took place and the child was born, the child may be a citizen of that place (eg. the US), or may not be a citizen of that place (eg. Ukraine). The parents will not be viewed by the Home Office as parents until an English Parental Order is made and that takes time. Parents may therefore bring the surrogate child into the UK in a number of different ways (often times illegally) and the situation is rationalised later.

International surrogacy arrangements have been hit hard by the COVID-19 crisis.  Children and surrogate parents expecting to leave the country of birth have been unable to do so, and many prospective parents anticipating a surrogate birth have been separated when countries have closed their borders.

When a child is born to a surrogate mother abroad, usually applications are made to the Home Office for emergency papers for the child, to enable the new parents to bring their child home. But we hear that the liaison between the Home Office and the Foreign Office hasn’t been as smooth as it would normally be, and those papers are not being issued promptly now and can take up to six months to arrive.

We also are aware that some British surrogate parents stranded abroad are in the situation that they may become accidental over-stayers in the country in which they are residing.  They will no doubt be contemplating applying for an English Parental Order for their child from abroad, but in order to make such an application, the child needs to be habitually resident in the UK. And if they are stuck abroad, this test won’t be satisfied. Matters are further complicated by the fact that technically an application for an English Parental Order needs to be issued within six months of the birth of the child, but recent cases have helpfully stated that this is no longer a clear guillotine.

In a situation where a worrying virus is about, being stuck far from home with a very small baby must be extremely worrying. This is especially so if the travel insurance and medical insurance for the trip has long expired and if the avenues for securing an English Parental Order are difficult to navigate.

If you are faced with this worrying situation, it is desperately important to obtain prompt advice from a family lawyer who specialises in surrogacy, and from an immigration specialist. Our surrogacy specialists can put you in touch with excellent immigration lawyers, where necessary.

If you require any advice on any of the issues discussed in this blog, please contact Family Law in Partnership consultant Pamela Collis on E: hello@flip.co.uk or T: 020 7420 5000 or visit our website page covering International Surrogacy here.

Pamela Collis is a very senior and highly regarded family lawyer who has specialised in family law for over 35 years. Pamela is known for her pragmatic and constructive style and her strategic vision. Pamela’s primary focus is international and domestic family law matters particularly the financial aspects of relationship breakdown, private law children matters (including surrogacy and international relocation) and pre and post nuptial agreements. Pamela regularly deals with jurisdiction issues, cross border tax issues and cases involving complex business valuations.