We have been living indoors for over a year and you may assume that this would lead to an increase in the "pitter patter of little feet". Couples may feel they have more time to start a family. Priorities may have been re-assessed. But recent studies have show that the impact of the pandemic has actually lowered birth rates causing some researchers to warn about the impact that this will in turn have when it comes to supporting an aging population.
What are the contributing factors?
According to one of Deloitte's Monday Briefing, birth rates typically dip following economic shocks, with financial and job insecurity deterring some would-be parents. In the West, births fell in the years following the early 1980s and early 1990s recessions and the 2008 global financial crisis. The restrictions placed on movement of people and activities (within the UK and abroad) such as building intimate relationships, weddings and fertility treatments have also impeded the birth rate growth.
Now that the world is opening back up, we may see a mini "baby boom". The are various ways in which would-be parents can start a family. If considering international surrogacy or adoption then there are some key considerations to bear in mind.
The legal side
Social attitudes towards surrogacy and adoption has changed over the years and there is an increase number of couples and single people who are interested in having a family using such avenues. The increase of surrogacy and adoption (worldwide) by same sex couples have also changed the public's perception of a what a traditional family unit should be; Queer Eye star Tan France and his husband (Rob France) had their first child (Ismail) via a surrogate. Tan is British and Rob is a US citizen.
A child born via surrogacy or adopted may have family and immigration legal implications which a would-be parent should be aware of before embarking on the journey:
Adoption:
In order for a couple or a single person to adopt a child from overseas, a strict procedure must be followed in order to safeguard children from exploitation. There are four types of adoption:
1. Adoptions under the terms of the Hague Convention
2. Overseas adoptions recognised by UK law
3. Overseas adoptions not recognised by UK law
4. De facto adoptions (defined under the immigration rules but has no legal significance in family law)
According to the immigration rules, the Home Office will recognise a de-facto adoption if the following has taken place:
(a) at the time immediately preceding the making of the application for entry clearance under these Rules the adoptive parent or parents have been living abroad (in applications involving two parents both must have lived abroad together) for at least a period of time equal to the first period mentioned in sub-paragraph (b)(i) and must have cared for the child for at least a period of time equal to the second period material in that sub-paragraph; and
(b) during their time abroad, the adoptive parent or parents have:
(i) lived together for a minimum period of 18 months, of which the 12 months immediately preceding the application for entry clearance must have been spent living together with the child; and
(ii) have assumed the role of the child’s parents, since the beginning of the 18 month period, so that there has been a genuine transfer of parental responsibility.
The Home Office has previously approached adoption cases very strictly without regards to the human rights elements that may be presented to them. An example of this was seen in 2019 where a UK resident was refused a visa to return home with her adopted baby three times, despite going through a stringent and lengthy adoption process in the UK with British authorities’ involvement. Following the media's intervention, the Home Office overturned its decision very quickly. The case of W v SSHD [2017] EWHC 1733 (Fam) does provide some hope for this adoptive parent; the Court found that by not recognising an adoption order which complied with the requirements of foreign law, the result would be in breach of the parent(s) Article 8 rights to respect their family life.
International Surrogacy:
Surrogacy is illegal in some countries. However, in the UK, surrogacy arrangements are permitted provided that the surrogate mother is not paid a fee to carry out the surrogacy. Due to restrictions in the UK, most intended or would-be parents decide to go abroad to countries (like the US) where surrogacy laws are more lenient.
When the child is born, what happens when the UK intended parents want to bring them back to the UK? what would the child's nationality be?
As there are different scenarios that can arise in inter-country surrogacy and the restrictions they impose, the way that a child may be brought into the United Kingdom will depend on individual circumstances.
Who are the parents under UK nationality law?
- the surrogate mother;
- the surrogate mother's spouse at the time of birth or time of treatment (unless consent was not given); or
- or the person who has proof of paternity is also considered as the other parent.
Is the child born from the surrogate mother, British by birth?
In accordance with the British Nationality Act 1981, a child will only be recognised as British if one of the parents were settled in the UK or British at the time of birth. If both the surrogate parents were not British at the time, a child will only be British at birth if the natural biological father is a British citizen otherwise than by descent.
So, what if the child isn’t British, how can they become British?
- Registration as a British citizen by discretion
Section 3(1) of the British Nationality Act 1981 and the Home Office guidance: Registration as British Citizen: Children sets out circumstances where a child (born via surrogate) can be registered as British.
- Entry Clearance by discretion
As can be seen in the Home Office guidance: Surrogacy outside the UK: guidance, the Home Office acknowledge the complexities of inter-country surrogacy arrangements and possible situations may not always fit perfectly within the three scenarios outlined in the guidance. Hence, discretion in these type of cases are very important. Where a child (born via surrogate) arrives at the UK border without securing a visa in advance, it will be a decision for the border official to decide whether to allow the child to enter the UK. If the child is allowed to enter, the parents can then register them as British (which could be a faster and simpler process than the next two options).
- Parental orders
Under section 54 of the Human Fertilisation and Embryology Act 2008, the intended parents can obtain full parental status and parental responsibility for the child by applying for a parental order. This is the equivalent to and adoption order. Where at least one of the intended parents has a genetic connection with the child, an application to the Home Office to allow the child to enter the UK outside the Rules can be made on the condition that a parental order must be made within 6 months of the birth of the child.
- Adoption recognised under Convention adoption
Where there is no genetic connection to the child, the intended parents could adopt outside the UK (see above the types of adoption recognised by the Home Office) or make an application for the child to enter the UK for the purpose to be adopted in the UK courts. Once adopted, an application could be made to register the child as British.
Conclusion
Would Ismail be a British citizen by birth? it depends. If Tan is the biological father, then yes. Depending on the arrangement, legally it is much easier for Ismail to have dual nationality if Tan is the biological father as Ismail will be a British citizen by descent and a US citizen by birth.
It is prudent to seek family and immigration advice as early as possible as the legal issues are complex. These types of applications will require careful planning with regards to timing and evidence as simply not meeting one requirement could be very costly and stressful.
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