Surrogacy, Covid-19 and Travel – What if I’m separated From My Baby?

Cara Nuttall
Cara Nuttall
Partner and Family Law Solicitor

In the coronavirus pandemic, we have seen numerous cases of Intended Parents sadly separated from their children born via surrogacy, because of travel and quarantine restrictions, in some cases for many weeks and months.

Restrictions on entry and exit for non-nationals, alongside significant backlogs in immigration and passport processing, have all contributed.

For many there is no easy answer, and it is a waiting game until reunions become possible.

Hopefully, as global restrictions ease, these instances will reduce, but the unexpected impact of Covid-19 shows the importance of planning ahead as much as possible.

It will never be possible to prevent all complications arising in surrogacy, but there are things you can make sure you have looked at in detail as part of the early research and prep for any international surrogacy arrangement.

How to Plan for Surrogacy Abroad

1. Make sure it is legal - Check as foreign national(s) that you are eligible not just to be involved in a surrogacy arrangement, but will also be eligible for any Court Orders or parenthood requirements there, as well back home in England & Wales.

Each country is different, and it’s always worth getting specific confirmation according to your personal circumstances

2. Check what travel documents your baby will be entitled to - In some cases they will be entitled to travel documents from the country where they are born, in others, they will not. Depending on your circumstances, your baby may or may not be eligible for British travel documents.

In some cases, you may have a choice. Know all your options so you have a clear idea of what you need to do to make sure your baby can travel home as soon as possible

3. Check how long each of those options will take - Some countries turn around applications quickly, others can take months. It is not unusual to have to stay in the country your baby is born for a number of weeks or even months before travel documents are issued, so you will need to plan ahead for that

4. Research the requirements/restrictions – You should find out what restrictions there are in you entering and remaining in the country where your baby will be born. You may need a specific visa and if so make sure you have it in plenty of time, in case the baby is born early.

You may only be able to remain in that country for a set period of time, which means it will need to cover the time it takes to get your baby’s travel documents and travel home. Look into the options to extend if something happens, for example the baby is poorly and departure is delayed

5. Know the immigration status of your baby – Make sure you check this ahead of your arrival back to the UK, and what visa or documents you’ll need. Again this varies depending on numerous factors, so specific advice, tailored to your circumstances is crucial

6. Plan for the worst case scenario - Think about what you would do if you couldn’t travel in time for the baby’s birth due to unforeseen circumstances. Have a Plan B in mind for who would care for the baby and where. Who could be your main contact and speaks the right languages? Find out if there are any documents you would need to complete to grant permission to that person.

The important thing is to know that even if things don’t go to plan and you end up separated, there is usually a solution, and it can often be a case of waiting.

Will Travel Restrictions Affect the Parental Order?

It shouldn’t. Following some recent cases, a period of separation between Intended Parents and the baby will no longer be the same obstacle to getting a Parental Order in England and Wales, as it once would have been.

One of the requirements for a Parental Order is that the child has had their ‘home’ with the Intend Parents when the application is lodged with the Court and when the Order is made.

This used to cause problems for families who couldn’t bring the baby home due to travel and immigration issues.

Time For Change

In a case undertaken by our team, Re A (S54 Criteria) 2020 EWHC 1426, the Court was persuaded to “read down” the statute to provide a much broader definition to the concept of ‘home’ to allow a Parental Order to be made in favour of an Intended Parent who had never actually spent time with the child beforehand.

In another of our cases, Re Z (Parental Order: Child’s Home) 2021 EWHC 29, the Court followed the approach in Re A and granted a Parental Order where the Intended Parents and child had been separated firstly due to coronavirus and then through the local authority removing the child for a period of several months.

The Court found the Intended Parents had provided a ‘home’ in the wider sense of the word through the arrangements they made to provide for and support the child, even though they could not be together, or within the family home which was situated abroad.

Of course, there is never a way to plan for every eventuality and safeguard against it, but the better prepared you are, the lower the chances of problems arising will be. And if issues do come up then being prepared means they can be fixed.

Specialist Surrogacy and Immigration Lawyers can be a source of key information, as can agencies and parents who have already been through the process. Get in touch for legal advice.

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