UK passport application procedure
Commissioning parents who are planning to apply for UK passports for their children born through surrogacy should consider carefully the timelines and paperwork requirements, well in advance for the birth. Whilst surrogacy clinics in India should provide you with a description of the complete process, they are not always fully aware of the UK laws and their applicability both when applying for passports in India, but also when you return to the UK to live with your child.
Firstly, it should be noted that if you are exercising you child's claim to British citizenship through one of you as the genetic father, along with an unmarried surrogate, whilst the genetic father can be recognised as the 'legal father' and the child is automatically 'British at birth' - this does not automatically confer parental responsibility to the commissioning parents. In any surrogacy situation where the surrogate is unmarried, only she will have parental responsibility at the time of birth. In the UK, unmarried parents registering a birth together and receiving a British birth certificate would then both have parental responsibility. However, if your surrogate pregnancy is happening in India, this is not the case.
In order to be the legal father, the genetic father must be named on the local birth certificate and any other documentation pertaining to the case.
Parental responsibility is the underlying concept that establishes a legal relationship between an adult and a child. It allows the adult to act in the role of a parent, allowing them to make decisions about the child's future and wellbeing, covering issues such as education, medical care, release of personal information, even the right to travel outside the UK with the child. So whilst on a day-to-day basis you might not be asked to specifically prove parental responsibility over your child, it is still a fundamental requirement and if not acquired properly could cause problems in the future. It is also worth noting that some countries, especially in South America, require a single parent travelling with a child to prove consent from the other parent (without a parental order this would be the surrogate) before they will allow you to enter the country.
In order for your Indian surrogate to effectively hand over parental responsibility you need to get her conesnt to a parental order – this is in the form of a legal document where she acknowledges her rights and freely undertakes to handover those rights to the intended parent(s). This should be drafted by an experienced lawyer practicing in the UK, as a general agreement or affidavit may not fully satisfy the criteria. The Human Embryology Fertilisation Act clearly stipulates that this consent cannot be given until at least six weeks after the birth. During that time, UK law allows the surrogate the opportunity to decide to keep the baby. In reality, because of Indian culture, this is unlikely to be the case, but still the six weeks needs to be respected. With a proper consent in place, you can then apply to the High Court for a parental order when you return to the UK.
The British High Commission on their website suggest that you should not leave India and enter the UK before the six week period has expired to ensure that the surrogate's rights have been respected.
A parental order can only be issued by the High Court and must be applied for within six months of the birth, with no exceptions. The order establishes unequivocally that one or both of the commissioning parents (as long as they are married, in a civil partnership or co-habiting) have parental responsibility, and also allows the birth certificate to be changed, reflecting the names of the commissioning parents, without the surrogate being mentioned. There is currently no other way to have a birth certificate changed in this manner, so for heterosexual couples where both commissioning parents are gamete donors and genetically connected to a child, this will be the only way to have both genetic mother and genetic father named on the birth certificate. Same-sex couples have the same right to have both partners' names on the birth certificate without the traditional lables of 'mother' or 'father'.
The court may refuse to issue a parental order if consent, or any kind of parental responsibility agreement was obtained before six weeks after the birth. The only caveat to that is if the surrogate's whereabouts are not known and you cannot reasonably get her consent at the six week point – however this may be difficult to prove, not easily be accepted by a court and should not be seen as a way to circumvent the six week rule.
If you are not able to get a parental order, then you may be able to apply for a lesser adoption order or residence order, which will give you almost the same parental responsibility, but not allow you to have the birth certificate changed.
At the time you make your passport application to the British High Commission in Delhi, you need to provide completed one C2 application form for each child. Be sure that the forms are signed by the correct person – this should be the person with parental responsibility, i.e. the surrogate. If in doubt you should check with the High Commission. You should also provide originals of all the documents listed on the High Commission website, which include things like the legal father's British passport and long form birth certificate (where the names of your parents are also mentioned), and a summary of your case from your surrogacy clinic. You will also need to provide an affidavit from the surrogate confirming that she is single (never married/divorced/widowed) and any documents to support this claim.
You should expect to be interviewed by a case officer at the High Commission (although this is at their discretion) and should have your child with you. This is important as a DNA test may be required (again at the discretion of the case officer) and the legal father as well as the children will have to provide samples which are taken by cheek swabs. You should check that as the legal father you are entitled so sign any medical release forms for the test on behalf of your child.
Anecdotally, the process takes between four and six weeks, including the DNA test which can take up to ten days before the results are known. The British High Commission states on its website that the process can take at least twelve weeks, which should be factored in to your planning as worst case scenario. On submitting applications you will most likely be told not to expect to hear anything from the High Commission before 12 weeks.
You may travel within India before a passport is issued for your child, however you will not be allowed to cross any international borders. For domestic travel within India – including flying, you can use your child's birth certificate (issued by local authorities – not a hospital-issued birth certificate) as identity proof. You can also ask your clinic to issue you with a letter, attaching a photograph of your child, an outline of your case and identifying the legal father.
Once you have received the passport for your baby (which can be done by collecting from the High Commission, or having it couriered to an address in India), you need to apply for exit clearance. This is done at the Foreigners Regional Registration Office (FRRO), or Foreigners Registration Office (FRO) in the city where your child was born. This process also involves two trips to the Ministry of Home Affairs (MHA) in Delhi, where you will receive sealed brown envelopes which need to be taken to the FRRO/FRO office you are dealing with. These contain instructions for the FRRO/FRO for issuing an exit visa in the child's newly-issued passport and clearance to leave India having completed the immigration formalities. Anecdotally this process can take up to a week to complete, depending on how far you have to travel between the child's place of birth and the MHA in Delhi. The FRO/FRRO may want proof that the surrogacy agreement was executed correctly (shown by the surrogacy agreement and a statement from the surrogate) and that you have settled all outstanding bills with your clinic and the hospital where your child was born (you should get a final statement of your accounts from each organisation, showing a zero balance).
As your child has been issued a British passport you do not need a visa or any additional clearances to enter the UK, or European Union countries.
If you surrogate is married at the time of birth, then the procedure and requirements are significantly different. Before making any passport application you will need to apply to register your child as a British citizen using form MN1, for which you must satisfy the criteria for being a British citizen yourself, as well as being resident and domiciled in the UK for a period of no less than three continuous years prior to the birth. In certain cases you may make an application for registration as a British citizen via a discretionary grant by the Home Secretary – but there are still parameters between which your application will be considered.
The process above is not interchangeable with the straightforward passport application when your child is a 'British citizen at birth' (from an unmarried surrogate where the genetic father is mentioned on a local birth certificate and can therefore be considered as the only legal father). The UK Borders Agency internal guidelines for processing applications clearly state that where a child is a British citizen at birth, an application for registration as a British citizen is not required and that applicants should be re-directed through the correct route - in this case applying directly for a passport.
The main exclusion to this is where your passport application is declined as your child is not considered a British citizen at birth, in which case you may apply for a discretionary grant, via the registration as a British citizen route.
The above is intended as an overview of the process from personal experiences as well as publicly available information. It does not constitute legal advice and the author acknowledges that there may be unintentional inaccuracies, or alternative interpretations of the rules and guidelines mentioned in the text. If you think the text should be amended in any way, please leave a comment using the form below.