There are many reasons why couples or individuals may need to consider pathways to parenthood which start – or end – beyond the UK. The two main ways that prospective parents can use international resources to become parents are international adoption (also known as intercounty adoption) or surrogacy.
Intercountry adoption
Before you can adopt a child from another country you must satisfy the eligibility criteria both in the country you're looking to adopt from and in Scotland.
In Scotland you must:
- be over the age of 21;
- not the biological parent of the child; and,
- either you (or your partner if you are adopting as a couple) must be domiciled in Scotland or habitually resident here for at least a year.
How do I adopt a child internationally?
Once you identify a child you wish to adopt it's important to seek legal advice on the process both in Scotland and in the country the child lives in, as the process can vary significantly in each country. The main difference depends on whether or not that country is a signatory to the international treaty on adoption, the Hague Convention. Depending on whether or not the country the child lives in is a signatory to the Hague Convention will affect whether you need to seek an adoption order in the child's home country or in Scotland in the first instance.
How much will it cost?
It is likely that your local Adoption Agency (usually a local authority) will need to complete a suitability assessment before the courts of either Scotland or the child's home country will grant an adoption order.
Local authorities will charge you a fee to complete this suitability assessment. Fees vary between each local authority but are likely to be more than £10,000. The Scottish Government will charge a further £1,675 if it is required to produce a Certificate of Eligibility. This is a means tested fee and so you may be charged less if your household income is below a certain level. You will also be charged for any legal advice you receive in Scotland and in the country in which the child lives and you may have to meet court fees in both countries.
How long will it take?
The length of the legal process varies in each country and you should seek legal advice in the country in which the child currently lives. Although exact timescales will vary depending on the location, in Scotland a court action for an adoption is likely to take between three to nine months. If a Certificate of Eligibility is required, this can take more than six months. It is important to seek advice and start this process as soon as possible.
How do I get my child home?
If the adoption has been completed under the Hague Convention your child will automatically gain British Citizenship by virtue of the adoption order. If your child was not adopted under the Convention then you may need to take additional steps before your child can enter the UK. Brodies immigration lawyers are able to advise in complex situations like these, please get in touch with our immigration team for further advice.
Will my foreign adoption order be recognised in Scotland?
If you have already adopted a child in another country before returning to Scotland, then the Scottish courts may recognise the adoption order granted abroad.
Surrogacy
It is becoming increasingly common for children to be born to families in Scotland via surrogacy arrangements. As surrogates are not widely available within Scotland many families enter surrogacy arrangements with surrogates based in another country
How do I become the legal parent of my child in Scotland?
In Scotland, if a child has been born via surrogacy then the surrogate mother, and her husband if she is married, are legally the parents of the child even if they are not named on the child's birth certificate and even if the court of the surrogate's home country consider you to be the child's parent(s). Once you have returned to Scotland with your child you must ask the court, with the assistance of a solicitor, to grant a parental order in your favour. A parental order will transfer full parental rights and responsibilities in relation to the child to you.
How do I get my child home?
The immigration rules relating to a child travelling to the UK vary depending on which country the child is born in and the citizenship the child consequently holds. It is important to take legal advice as soon as possible to avoid any delay to your return home after the child is born. For further details on immigration, please get in touch with our immigration team.
What if I paid my surrogate?
In Scotland, the law is clear that surrogates should not be paid other than for "reasonable expenses". Payments made to international surrogates may be considered reasonable expenses when broken down to account for the surrogate's medical costs; loss of earnings and other expenses during the pregnancy. If the payment has exceeded what is likely to be reasonable then the court may still be persuaded to grant the parental order if it is convinced that it is justified. You should seek legal advice at the outset before e entering a contract with a surrogate to determine if it is likely that the sums you are being asked to pay to her would be likely to be considered reasonable by the court.
When should I apply for a parental order?
You should apply for a parental order once you return to Scotland with your child. An application for a parental order cannot be made until the child is six weeks old, but should be made before they are six months old. If your child is older than six months, a parental order can still be granted if the court is persuaded that the order is required to safeguard the welfare and wellbeing of the child despite the time limit being exceeded.
What does the court consider when granting a parental order?
The primary concern for the court is the welfare of the child. The court will appoint a specialist solicitor to prepare a report on behalf of the court regarding the suitability of the order. As part of this report the solicitor will meet you at home and report back to the court on your living situation and the welfare of your child.
This solicitor will also need to meet with the surrogate – often this can be done via video call – and witness her signing a formal consent form confirming she is content for the parental order to be granted. You may wish to explain to the surrogate that her formal consent will be needed after the child is born so that she knows she will be contacted in the future and so that she lets you know if her contact details change after the baby is born.
In countries where surrogacy is common there are numerous surrogacy agencies who can assist you with the practical arrangements of finding a suitable surrogate and help you keep in touch with the surrogate both during their pregnancy and after (where needed). We recommend that you find a reputable agency in the country of your choice to help you start your surrogacy journey.
Our family law experts understand that pathways to parenthood are diverse and unique for every family. If you are considering starting your family through international avenues, please get in touch.
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Senior Solicitor
