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The Most Common Problems in International Surrogacy Cases

Hot on the heels of the wonderfully insightful International Academy of Matrimonial Lawyers (IAML) International Surrogacy Symposium in May of this year, I was delighted to be invited to speak at another international surrogacy symposium run by the Centre for Research at Bedford University. I spent the day there exchanging experience of surrogacy law in practice with experts not only from this country, but also from various other European countries.

The discussions acted as a stark reminder of the issues and difficulties that can arise in international surrogacy cases. Conflicting laws between various states add to an already complex matrix. It is important to remember that difficulties that intended parents and surrogates can encounter when making arrangements across international borders cannot always be rectified. There is no substitute for getting a clear and comprehensive understanding of the rules in both countries, and how they interact, before you enter into an agreement.

The most common problems in international surrogacy cases include the following:

• The Intended parents not being able to obtain legal parenthood for their child.
• The child having no legal parents and therefore becomes stateless.
• The consequent immigration issues of stateless children.
• The surrogacy arrangements constituting, or potentially constituting, a criminal offence.

Many people have entered into foreign surrogacy arrangements in good faith, only to discover when the child is born what a complex situation they’re in. However, with good planning in advance, a surrogacy arrangement can work perfectly well.

The Future of International Surrogacy Agreements

Recent decisions made by the High Court here in England continue to demonstrate the desire of the authorities to help people cement their family unit with the appropriate legal status. This should provide reassurance to any couple considering a surrogacy arrangement.

Any child born as a result of a surrogacy arrangement abroad will still need to be the subject of a Parental Order in this country. It is only by way of such an order (or an adoption order) that a child can become the legal child of both intended parents, regardless of the law in the country where the arrangements were made and where the child was born.

International gatherings of surrogacy specialists demonstrate just how far we are from any form of international unity for surrogacy. We have unity for international adoption, international contact and international child abduction, but until unity is achieved for surrogacy internationally, meticulous planning in regard to the legal framework will be an essential part of surrogacy arrangements.

Cara Nuttall is a Senior Family Law Solicitor at Slater and Gordon Lawyers with expertise in complex children law and international cases.

Slater and Gordon are experts in the laws surrounding children and their prospective parents. If you need to speak with a child law specialist you can call us on freephone 0800 916 9055 at any time or alternatively you can contact us online and we will call you back.

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