Can We Have A Child ?

[agsnowdon]

Hi hope anyone can help!!!

Me and my girlfriend who is a man who has has a sex change(is there any polite way of saying that) Would like any advice on.....

Can I have a child with a Thai surrogate mother and bring him/her back to England legally as my or our child and for him/her to beable to live with us?

Thanks for all your help in advance!!!!

Ash

[the scouser]

Ash,

I've never come across such a situation before but I don't see why not. Eventhough the child's birth would be an arrangement with a surrogate mother you would still be the child's biological father. If born in Thailand the child would not be British as you would be unmarried to the mother but you could seek to register the child as British. Initially you would have to get the child a Thai passport and apply for a visa for the UK. I would suggest that you provide the visa officer with a DNA test confirming you as the father as well as some sort of Thai legal document giving you custody of the child. Link to the immigration rules.

Cheers,

Scouse.

[GU22]

Ash,

What you suggest is almost certainly possible, but it will be fraught with difficulties and pitfalls. I suggest you seek the advice of a qualified and competent immigration lawyer in the UK before embarking down this road.

[the scouser]

Ash,

Certainly speak to an immigration lawyer but I don't see any particular difficulty with such an application. The immigration rules allow for a parent who has sole custody of a child to bring him/her to the UK for settlement providing the criteria of the immigration rules are satisfied. Nowhere in the rules does it say that fathers of surrogate children need not apply. The circumstances in which the child is conceived are otiose.

Scouse.

[GU22]

One pitfall that immediately springs to mind is that whilst surrogacy is legal in the UK, no fee can be paid to the surrogate; the only money that can be paid is to cover 'reasonable expenses'. Whilst I'm sure finding a surrogate mother in Thailand would not be a problem, I can't see her doing it for free!

How this law would be applied if the surrogate lived in another country only someone well versed in the relevant UK laws could advise on.

[the scouser]

Hypothetically Ash is presenting the authorities with a fait accompli. Whether the surrogacy is lawful or not would not deny the existence of the child who, being alive and kicking, would be entitled to seek settlement on the basis of having a parent settled in the UK. After all the question Ash posed was could he bring the child to the UK not what are the rights and wrongs of surrogacy.

Anyway, the pitfall you highlighted is obviated by paying the surrogate reasonable expenses which are agreed beforehand.

Scouse.

[GU22]

I'm not saying that Ash's plan is not possible, but it may not be easy.

From the BBC:-

Gay surrogate fathers blocked by Britain

Two babies -- born in the United States to a surrogate mother for two homosexual British men -- have been refused residency in the United Kingdom.

The babies -- who are American citizens -- were conceived using donor eggs and sperm from one of the gay partners.

In a historic ruling, the US Supreme Court registered both men -- Tony Barlow and Barrie Drewitt -- as fathers of the twins and did not register a mother.

Mr Barlow and Mr Drewitt told a Sunday newspaper The Mail on Sunday they would write to the Prime Minister, Tony Blair, to demand that Britain recognise them as the legal parents and give UK citizenship to the babies.

The babies -- a boy and a girl -- have been granted one month's temporary stay in Britain.

and from this page:-

British immigration officials told Barrie Drewitt and Tony Barlow when they arrived back in the UK last week that the three-week-old babies do not qualify for automatic residency.......

......a Home Office spokeswoman said the surrogate mother was still the legal parent of the babies under British law.

OK, this was five years ago, and I've not been able to find out what has happened since, (other than the couple and their children were living in Spain in Jan 2004) but this does show that the procedure may be a little bit more fraught than merely registering the birth at the embassy.

Hence my advice to seek the advice of a specialist immigration lawyer in the UK.

[the scouser]

I remember this case and was an immigration officer at the time at Gatwick. The reason for the child being refused entry was purely and simply that it did not possess a settlement entry certificate. The parent thought that as the child was American he could just bring it to the UK without any form of entry clearance. Should the child's parent have obtained an entry certificate for the child then the immigration officer would have granted indefinite leave to enter.

I wasn't suggesting that the birth be registered at the embassy. I advised that the child be registered as a British citizen; i.e. apply to the Home Office for registration.

Scouse.

Edited March 10, 2005 by the scouser