19. Citizenship, passports and travel documents for the Surrogacy Baby
Returning home from overseas can be complicated depending on the legal strategy chosen. The process is quite different depending on the country of origin of the child, and the country in which the surrogacy process took place.
Generally speaking, the legal framework for applying for citizenship and passport is the same for a specific country regardless of which of its embassies you are dealing with. The basic requirements and legality are set at the federal level of the home country, and those rules are followed by the consulate in the foreign country.
That said, local Consul Generals are often allowed great leeway to interpret the regulations given by their home government. As such, specific processes and requirements for surrogacy applications may be somewhat different. For this reason it is always advisable to contact your overseas Consulate directly and ask them about the requirements for obtaining a passport and citizenship for your surrogacy baby.
Who has parental rights over the baby at birth?
This question is a bit complex, and depends on the where the baby is born and the civil status of the parents.
Parentage depends on where the baby is born, not the nationality of the surrogate (or the parents). If the baby is born in a jurisdiction that supports the surrogacy contract, the birth certificate will automatically be issued with the name of the “commissioning parents”. That would make them the legal parents, and the surrogate has no parental rights.
However, in a jurisdiction that does not have legislation regarding surrogacy, then the birth certificate is issued with the name of the birth mother and the genetic father. This means that the surrogate has at least 50% parental rights. The genetic father may also have 50% parental rights. (How parental rights are awarded depends on the Family Law of each individual country.)
In most surrogacy agreements, the surrogate waives her parental rights — both before and after the birth. This gives the father sole parental rights over the child. However not all countries allow this, and depending on the country there are different additional legal processes that are required. Some countries have simple “Parental Transfer” procedures that are completed in a few months. Some require an adoption process to remove the mother’s legal status, which could take much longer.
1. The best way to understand how to establish sole legal parentage within your home country is to talk to a local Family Lawyer in your home country. While agents can offer some guidance within the country where the surrogacy happens, they should not pretend to be an expert on the Family Law in your home country.
2. The first and easiest step is to bring your baby home, and often that is most quickly done by getting a local passport for the baby and returning home on a qualifying Family visa. A local passport usually takes a few weeks. Once home you must complete the arduous process of getting parental rights… but at least you are home and can live your normal life with your baby as you settle the legal issues.
3. The only places where your commercial surrogacy contract is recognized for Gay parents is the United States. Altruistic surrogacy contracts are legal in the UK, Australia, Ireland, Denmark, Belgium and Netherlands. Surrogacy is unregulated in countries like Kenya, which means that any person can pursue surrogacy there but the question of the child’s parental rights cannot settled by your surrogacy agreement, and it must be resolved either in a local court or once you return home.
In short… if you are a citizen of a country that recognizes your surrogacy contract, the process to return home is quite straightforward and quick. Your government will recognize you as the parent of the baby, and the surrogate has no parental rights under the law.
On the other hand, if your country does not recognize the surrogacy contract, there will be some legal processes to follow in your home country. Those processes could take months or even years. But during that time the baby would be with you and you would continue a normal life as you wait for the final papers to be issued.
The process for registering your baby and obtaining his citizenship and travel documents varies from country to country. US citizens will need to register their baby’s birth with their local embassy and obtain a passport before leaving for home. A DNA test is required, as well as other documentation from the clinic, the hospital, and the surrogate are also required to obtain your child’s US passport.
Couples from the UK however must register the baby with their local embassy and obtain travel documents to return home with the baby. Once back in the UK, the parents must obtain a Parental Order from the UK courts, which will officially establish the child’s parentage, citizenship, and legal status.
About the surrogacy process for European citizens
European governments generally will recognize the Intended Parents as the genetic parents of a baby, and that entitles the baby to citizenship. A recent High Court decision in the EU has mandated that all governments must acknowledge surrogacy children and grant them citizenship, and most countries are complying with this. The process can be determined either at the country’s embassy overseas, or at home. However depending on the country, the bureaucratic process may be quite lengthy, and may even require a local court order establishing parental rights.
Altruistic surrogacy is legal in the UK, Ireland, Denmark, Belgium and Netherlands. This generally means there is a legal framework in thee countries for the transfer of parental rights from the surrogate to the Intended Parents. In these countries surrogates are not allowed to be paid more than out-of-pocket expenses. This makes the year-long effort not very appealing, and But it is very difficult even for local couples to find qualified surrogates.
Some other EU countries where surrogacy is prohibited, including Sweden and Spain, have developed legal processes to establish parental rights through their own courts. All these processes entail providing evidence of the child’s genetic relationship to the parents, proof that the surrogate has legally renounced all her parental rights and given full custody to the intended parents, and proof that all legal processes under the local law have been correctly observed.
Didn’t find what you need? Search our Surrogacy Guide for all the answers…