Gaining Home Citizenship For Your Baby Though Surrogacy
We would always highly advise that you talk to local legal consul in your home country or consult immigration officials before beginning a surrogacy journey. We only offer surrogacy in jurisdictions with a strong legal climate for surrogacy, but there may be laws in your country which preclude the acquisition of citizenship for your baby.
Typically, the easiest way to gain home citizenship and return home with your baby is through descent. DNA testing through an accredited lab may be needed in order to obtain citizenship, but this is not always necessary. When your home country’s regulations have been satisfied, immigration officials will begin processing your baby’s passport. Flexibility at birth is needed as the whole process including birth certificate and acquisition of passport can take anywhere from 2 weeks to several months depending on the country you are from.
The United States
The most important aspect of US law is that citizenship is by descent and a DNA test (one partner must be a US citizen with a genetic link) must be performed by an AABB accredited lab in the US. DNA kits are typically shipped to the embassy in the country doing surrogacy one month before projected birth.
If there is no genetic link, citizenship will not be granted. There have been publicized cases of IP’s undergoing a surrogacy arrangement with no genetic link and citizenship being denied for their baby even though parentage was recognizes in the surrogacy jurisdiction.
In Canada, citizenship is by descent. Canada does not necessarily ask for a DNA test but may. It also requires evidence of payments made for surrogate medical care.
Like Canada, Australia has a burden of proof society and may or may not ask for a DNA test to prove a genetic link to an Australian citizen parent. It is also important to recognize that certain Australian states have very restrictive rules on overseas surrogacy.
The United Kingdom
The UK has a few very special considerations with regard to overseas surrogacy. The first and foremost is that it will be essential to engage a non married surrogate. UK law recognizes the person who gave birth as the mother despite what the law says in the jurisdiction of the surrogacy arrangement. Thus, if the surrogate is married, it will also recognize the husband as the father leaving the intended parent(s) in a legal limbo. A parental order signed by the surrogate is also needed 6 weeks to 6 months post birth.
Similar to the UK, a non married surrogate will be necessary for German IP’s.
Surrogacy is illegal in France, but there are have been 2 landmark decisions that have confirmed the legality and ability to pass on citizenship to babies born to French citizens in a foreign jurisdiction where surrogacy is legal ans their parentage is recognized.
The European Court of Human Rights first sanctioned France in 2 cases in 2013. The ruling can be found here.
Also, in July, 2015, The Court of Cassation, one of France’s highest courts, found the same. The information on the ruling can be found here.
Norway makes it easier if the surrogate is single. In addition, the surrogate must report to a local consulate with the IP’s after birth to give her consent to the surrogacy arrangement.
It is important that intended parents are well aware of the legality of overseas surrogacy before entering into the surrogate contract. It is advised that you contact citizenship and immigration officials or independent consul with a specialty in immigration and family law at home to discuss this before starting.