Immigrationboards.com

Dear all,

I hope I'm posting my question in the right section of the forum.

I would appreciate if you could share your knowledge and experience on this complicated situation we found ourselves in.

My brother is a British citizen and has been living in Japan with his Japanese wife for the past 10 years.
They travelled to Georgia ( the country) and had a baby via surrogacy and a separate donor egg, using his sperm about 6 years ago. Once the baby was born, they went back to Japan and registered the baby there.

So my brother is the biological father, and his wife has no biological connection with the child. The child is a product of a donor egg, a surrogate mother and my brother. Both of these women were married at the time of the procedure and have of course full consent.

Just to add, the clinic they had had the procedure at is now permanently closed( but we are in contact with the owner of the clinic).

Now my brother and his wife want to move back to the UK with their child. How do we get a passport for the child? Do we need to obtain a citizenship first?

I've also read that paying for such procedure is a criminal offence under UK law. But obviously they had paid to the clinic for the whole thing. I'm really confused about the whole thing. What can we do?

Thank you all in advance.

Hope

If your brother is a British citizen then his son is automatically British by descent, and once in the UK can apply for a British passport (I assume he has another passport, presumably Japanese?)

All that will be needed is his birth certificate with mother and father details, their marriage certificate, and father's British passport.

contorted_svy wrote: ↑

Tue Aug 20, 2024 3:31 pm

If your brother is a British citizen then his son is automatically British by descent, and once in the UK can apply for a British passport (I assume he has another passport, presumably Japanese?)

All that will be needed is his birth certificate with mother and father details, their marriage certificate, and father's British passport.

It is not as simple as that. See the guide, particularly page 8.

https://www.gov.uk/government/publicati ... y-guidance

And the link below.

https://www.gov.uk/government/publicati ... y-overseas

I don't believe anyone on the forum has the knowledge or experience to offer advice on this type of query due to it being very complex. The OP should seek legal advice.

contorted_svy wrote: ↑

Tue Aug 20, 2024 3:31 pm

If your brother is a British citizen then his son is automatically British by descent, and once in the UK can apply for a British passport (I assume he has another passport, presumably Japanese?)

All that will be needed is his birth certificate with mother and father details, their marriage certificate, and father's British passport.

It's nowhere as simple as that. The British Nationality Act 1981 has its own separate definition of who is the mother and father of a child for the purposes of nationality. For a start, very clearly, it is the Georgian woman who gave birth to the child who is the mother of the child, for the purposes of the British Nationality Act 1981, not the OP's sister-in-law.

Section 50 (Interpretation) of the British Nationality Act 1981 wrote:(9)For the purposes of this Act a child’s mother is the woman who gives birth to the child.

(9A)For the purposes of this Act a child’s father is—
(a)the husband or male civil partner, at the time of the child’s birth, of the woman who gives birth to the child, or
(b)where a person is treated as the father of the child under section 28 of the Human Fertilisation and Embryology Act 1990 or section 35 or 36 of the Human Fertilisation and Embryology Act 2008, that person, or
(ba)where a person is treated as a parent of the child under section 42 or 43 of the Human Fertilisation and Embryology Act 2008, that person, or
(c)where none of paragraphs (a) to (ba) applies, a person who satisfies prescribed requirements as to proof of paternity.

It is also unclear whether and to what extent a surrogacy agreement under Georgian law would be recognised by the UK's Human Fertilisation and Embryology Acts.

Hope80 wrote: ↑

Tue Aug 20, 2024 1:02 pm

The child is a product of a donor egg, a surrogate mother and my brother. Both of these women were married at the time of the procedure and have of course full consent.

If the Georgian agreement for surrogacy is not recognised by the UK courts, for the purposes of British nationality law, the father of the child will be the husband of the biological mother of the child, not the OP's brother.

So it would appear that, from the viewpoint of British nationality law, the child is not related to any British citizen at all.

I concur with @CR001 that the OP's family needs expert legal advice, ideally from a lawyer/firm who is well-versed in both nationality law, human fertilisation law and how the UK's human fertilisation law links up with Georgian law. It is a very niche issue that we on these forums would be very ill-placed to advise on.

Thank you very much for your input. this is exactly what we were afraid of. I guess they won't be able to apply for a visa as a dependent for the child either. They are way too late for applying for the parental order, the kid is 6 years old already and apparently this should have been done in the first 6 months. But I'm thinking perhaps that's a condition for people who already reside in the UK and plan to return back soon after the birth.

As you suggested, we will need a good lawyer who specialises in these matters.

Hope