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Couples’ international surrogacy suffers legal delays

Date: February 15th, 2016 - Written by: Brookman Solicitors



As reported in Family Law Week, a commercial surrogacy agreement between an Indian woman and a British couple led to months of delay, until the children were permitted to travel to their new home in the UK.

After they learned that the in-vitro fertilisation over in India had been successful, the couple visited the Indian Consulate in Birmingham, to notify them of the imminent birth and to supply the surrogacy agreement, which would allow them to obtain an Indian medical visitor’s visa.

Twin girls were born in May 2014. The British parents duly travelled over to India and secured legal advice, to ensure the surrogacy agreement was legal. Their names were subsequently included on the children’s birth certificates.

Unfortunately, they were then forced to return to the UK at the end of May, as they had not yet received British passports for their babies. A week or so later, the British High Commission returned the applications.

The commissioning mother returned to India the following month and the biological mother signed a consent form, allowing her to again apply for British passports for the girls. A significant delay was then experienced, meaning that the passports weren’t actually issued until May 2015. Although the reasons for this have not been fully explained, it was suggested that there was some doubt about the authenticity of the death certificate of the husband of the biological mother and indeed it appears that there were even questions about the woman’s own identity. Concern had also been raised about the possibility that the applications for parental orders may have been used to gain British citizenship or to work around English immigration law. It must be emphasised however, that none of these claims were ever substantiated.

Details of this delay subsequently led Mrs Justice Russell to issue guidance in respect of all international surrogacy cases where parental orders are sought. This guidance has been approved by the President of the Family Division.

Typically, international surrogacy is a very complex issue, which is why such cases should always be referred to a High Court Judge of the Family Division. In this particular instance, the proceedings had not been allocated appropriately, which, it was agreed, had contributed to the delay.

In addition, Mrs Justice Russell stressed that when completing a parental order report, the reporter must meet with both the child and the applicants to assess their welfare, unless sufficient evidence has already been obtained or in exceptional circumstances.

It is unfortunate that the couple experienced such a significant delay, due at least in part to a failure by the legal system to follow procedure. This delay undoubtedly caused them undue stress and financial pressure. However, this case has had the positive outcome of reinforcing the legal proceedings required and outlining the need for specialist knowledge from a High Court judge in the Family Division.


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