Families across frontiers: When law and borders meet

When we talk about “families across frontiers”, we’re really talking about families whose lives span more than one legal system. This may be because parents have different nationalities, children are born abroad, or families have been created through adoption or surrogacy in another country.

In the post-Brexit and post-pandemic landscape, borders have taken on renewed importance. Whether it’s through surrogacy, adoption, relocation for work, or simply a love for travel, modern family life doesn’t always fit neatly within the boundaries of a single country’s legal framework.

The ease with which people can move freely across Europe has changed significantly. For families, that shift has brought new challenges. For solicitors, it has led to a noticeable rise in cases with an international dimension. Increasingly, we find ourselves working collaboratively across disciplines to find practical solutions where family law and immigration law collide.

Two of the most common ways that prospective parents look beyond the UK to build their families are intercountry adoption and international surrogacy. Gamete donation accounts for an increasingly high proportion of IVF cycles in the UK, with clients often travelling abroad for treatment, particularly to Spain. 

Intercountry adoption

Intercountry adoption (sometimes called international adoption) is where a person or couple becomes the legal parent(s) of a child who is a national of another country. The adoption process can look very different depending on the country involved. Navigating it can feel daunting.

Under UK law, a child adopted in the UK will automatically become a British citizen if at least one adoptive parent is a British citizen. However, where an adoption takes place internationally, the position can be more complicated.

For intercountry adoption, there is scope for children adopted under the Hague Convention to acquire British citizenship automatically where at least one parent was a British citizen at the time the adoption order was made. This is provided that adopting parents were also habitually resident in the UK at the time of the final adoption order.

When those criteria aren’t met, immigration rules come into play. In order to enter the UK for the purposes of adoption, a foreign national child will need to apply for prior entry clearance and be granted permission to enter the UK upon arrival. Children adopted overseas, or brought to the UK for the purposes of adoption, will be subject to immigration control and will need a UK visa to facilitate their entry to the UK. For families, this can feel like an additional layer of stress at a time that should be focused on welcoming their child home. The key is understanding early on how adoption and immigration processes interact, and planning accordingly.

Surrogacy

Surrogacy is where a person becomes pregnant with a child and gives birth to the child with the intention that someone else will be the legal parent of that child. Couples may pursue surrogacy overseas because of clearer legal frameworks, availability of surrogates, or established agencies. Common destinations include the US and Georgia, and prior to the war, Ukraine. More recently, UK agencies have also begun operating in countries such as Mexico.

While parentage might be recognised in the country where the child is born, that recognition does not always translate automatically when families return to the UK. One of the most common, and understandable, misconceptions is that once parentage is established abroad, nothing further needs to be done at home.

On returning to the UK, families may face questions around citizenship, legal parenthood and immigration status. All issues that can feel overwhelming when all parents want to do is settle into family life with their new child.

Anyone considering surrogacy abroad should be mindful that they are often navigating two (or more) legal systems at once. It’s important to consider not only the intended parents’ position, but also the legal and practical implications for the surrogate, and, most importantly, the child.

Gamete donation – a case study 

We recently helped a couple who lived in Scotland but worked in Malaysia. They sought fertility treatment in Singapore, creating embryos using donor eggs and sperm. The embryos were carried by a surrogate based in the Philippines. The medical process was managed by a reputable agency. The couple sought our advice on the issue of legal parentage and how to ensure that both had full parental rights and responsibilities in relation to their twins. The children were born in the US, fate having intervened to deviate from our clients’ original birth plan. 

By soliciting advice from emigration experts, we successfully navigated the family’s return to the UK, ensuring that statutory time limits were considered in a timely manner to minimise stress for the family. Valid and complex questions arose in relation to the concept of parenthood – different countries having different rules and considerations around legal parentage. Genetics are not always the determining factor where donation is concerned, with the law of the treating country typically governing the issue of legal parentage.

When exploring various possibilities when it comes to creating your family, having a discussion with a solicitor can provide reassurance. Understanding the legal framework around possible methods of family creation and international options means being prepared, protecting your family’s future, and providing peace of mind. Families today are diverse, mobile and international. The law is slowly catching up with that reality, but it doesn’t always move at the same pace as people’s lives. As family lawyers, our role is to help bridge that gap and help families navigate life confidently across frontiers.

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Amanda Masson is a Partner and Head of Family Law at Wright, Johnston & Mackenzie LLP. She advises on areas including divorce, cohabitation, child law and fertility law. Amanda has more than 25 years of experience and is an experienced litigator in both the Sheriff Court and Court of Session.