13 Mar Challenges of Having a Baby Abroad via Surrogacy

Understanding British Nationality Laws

By Arona St James Solicitors

Having a baby abroad through surrogacy presents unique legal challenges, particularly when it comes to obtaining British nationality for the child. Factors such as the surrogate’s marital status, the genetic link to the intended parents, and the type of British nationality held by the intended parent(s) all influence the process.

Key Legal Barriers

Surrogate’s Marital Status

• If the surrogate is married, her spouse is presumed to be the child’s legal father under UK law, even if there is no genetic link. This can prevent the intended father from automatically passing on British nationality and may require additional legal steps to establish paternity.

Genetic Link Requirement

• At least one of the intended parents must have a genetic connection to the child to pass on British nationality. If neither parent is genetically related, the child cannot automatically acquire British citizenship and must rely on discretionary applications.

Type of British Nationality

• Only parents who are “British otherwise than by descent” can pass on citizenship automatically.
• Parents who are “British by descent” cannot automatically pass on their nationality to children born abroad, which can create significant complications.

Application for Citizenship

• If the child does not automatically qualify for British nationality, parents must apply for registration as a British citizen through the Home Office. This process can be lengthy and requires meeting specific legal criteria.

Immigration Challenges

• If the child is not born British, they may need a visa to enter the UK while awaiting citizenship or a parental order, adding complexity and potential delays in bringing the child home

If One Parent Is a British Citizen (e.g., a Biological British Father)

The biological father’s British citizenship plays a critical role in determining a child’s eligibility for British nationality.

Automatic Acquisition of British Citizenship

• If the biological father is a British citizen otherwise than by descent, the child can automatically acquire British citizenship at birth, provided that:
  ○ There is a genetic link.
  ○ The father is recognized as the legal parent under UK law.
• For children born on or after July 1, 2006, an unmarried biological father can pass on British citizenship if paternity is proven through:
  ○ Being named on the birth certificate.
  ○ A DNA test or court order confirming paternity.

Barriers to Automatic Citizenship

• If the biological father is “British by descent,” the child will not automatically acquire citizenship and may need to apply for registration.
• If the surrogate is married to someone else at the time of birth, UK law presumes her spouse to be the legal father. This can block the biological father from passing on citizenship unless this presumption is legally rebutted.

Registration as a British Citizen

• If automatic acquisition is not possible, the child may be eligible for registration under specific provisions of the British Nationality Act 1981. This includes cases where:
  ○ The biological father is British but not legally recognized as a parent at birth.
  ○ The child meets other discretionary criteria for registration.

Why Careful Legal Planning Is Essential

These barriers highlight the need for careful planning and legal advice when pursuing surrogacy abroad. Ensuring a smooth path to British nationality for the child requires understanding UK nationality laws, establishing paternity correctly, and navigating the necessary immigration and citizenship applications. Consulting a legal expert early in the process can prevent delays and complications, securing the child’s rightful nationality status as soon as possible.

If you need help, we are happy to assist and support you through this process.

Please get in touch with us on 0208 175 5000 or email hello@aronastjames.co.uk