Citizenship, passports and travel documents for the Surrogacy Baby
Returning home from overseas can be complicated if you are from a country where surrogacy is not supported. In those countries (like Switzerland, Italy, or Singapore), you may need additional legal advise from a local lawyer experienced in Immigration or Family law.
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In any case, it’s ALWAYS advisable to consult with a local lawyer for any surrogacy program, regardless of where it happens.
Generally speaking, here’s the basic steps to establish that your baby is a citizen.
Step 1: Demonstrate the intended parents are citizens and meet the legal requirements for passing on their citizenship.
Step 2: You must demonstrate that the baby is genetically related to the Intended Parents (either the sperm or egg donor).
Step 3: Demonstrate that the surrogate was not coerced or exploited.
Bringing your baby home: Step-By-Step
Although exact requirements of every embassy are different, nearly all countries require some form of the following process. Here is a “big picture” understanding of the legal journey that you and your family must take.
The exact amount of time required will depend on the specific documents your embassy will request. For that, you must contact the embassy directly (and it is often very useful to have a local lawyer assist with this).
The final step is the most complicated and time consuming, but happens only after you return home.
- 1) Register the child as a citizen by descent by proving your own citizenship and the child’s genetic relationship to you. This can require a DNA test plus supporting documentation. This may take 1 or 2 weeks for DNA tests plus time at the embassy to process the request. (It will also require a local birth certificate, which is usually provided within a week of the birth.) Additional supporting documents may be requested, including hospital records, IVF reports, and a medical exam to verify that the child was conceived as described and then born to the surrogate mother.
- 2) Prove the legal mother has waived her parental rights and granted you authority to leave the country with the child, apply for a changed citizenship, and (later) have your spouse adopt the child. A simple affidavit could take one week, but if the embassy insists on a court-ordered custody or parentage decree, this could take many more weeks.
As part of your surrogacy agreement, the surrogate mother will explicitly waive her parental rights and acknowledge you as the sole legal parents of the child. In many cases this is sufficient, but your agency should be ready to provide any additional documents requested by your embassy.
- 3) Apply for the passport or other travel documents. For most countries, this takes about 2 – 3 weeks but can often be expedited. Passport applications must be made by the parents of the child, although your agent will be able to help you collect the requested documents.
- 4) Establish you (and your spouse’s) parental rights (and remove the parental rights of the surrogate mother) through an adoption or parental order proceeding. This will be done in your home country and often can take several months. (In countries where same-sex adoption is not legal, this final step may not be possible. In this case you will want to establish custody rights through your personal will and other legal documents.)
In most countries where Altruistic Surrogacy is recognized and regulated, a legal framework exists for the surrogate to waive her rights and transfer parentage to you and your spouse. Parentage transfer is required in the UK and Australia, and must be done after you return home. The process will require a local lawyer to submit the petition to your local courts.
The basic citizenship process is the same for all consulates of a specific country. 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. However, local Consul Generals are often given some leeway to interpret the requirements given by their home government. As such, specific requirements for surrogacy applications may be somewhat different from consulate to consulate. 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 is usually issued with the name of the “commissioning parents” often before the birth or shortly thereafter. That would makes the IPs the legal parents, and the surrogate’s parental rights (if she had any) would be removed.
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 (usually) genetic father. This means that the surrogate has at least equal parental rights. The genetic father will also have parental rights, but in many jurisdictions the rights of the biological mother are often given priority. (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 in the Surrogacy Agreement and again after the birth. This paves the way for the father to be given sole parental rights over the child. However not all countries recognize the surrogate’s waiver, 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. There’s a full discussion about surrogacy laws worldwide in the Surrogacy Guide.
Three important notes…
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 to bring your baby home is often getting a local passport for the baby and returning home on a qualifying visa. A local passport usually takes a few weeks. Once home you must complete the process of getting parental rights… That may take some time, but at least you are home and can live your normal life with your baby as you settle the legal issues.
3. The only place where your commercial surrogacy contract is recognized for Gay parents is the United States (and then only in those “surrogacy-friendly states). Altruistic surrogacy contracts are legal in the UK, Australia, Colombia, Ireland, Denmark, Belgium and Netherlands. Surrogacy is unregulated in countries like Kenya and Mexico, so any person can pursue surrogacy because there are no restrictions. However, in unregulated jurisdictions, 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 generally straightforward. Your government will recognize you as the parent of the baby, and the surrogate will have no parental rights under the law. Whether this happens immeidatly and automatically depends on the country.
On the other hand, if your country does not recognize the surrogacy contract, the surrogate will be the legal mother until some involved legal process takes place 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 these 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 it is very difficult even for local couples to find qualified surrogates.
About the surrogacy process for citizens of other countries:
Some other EU countries where surrogacy is prohibited, including Sweden and Spain, have developed 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.
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