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Domicile – what does it mean and why is it important if you are having a baby through surrogacy?

Date:22 MAY 2018
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A parental order is the UK legal solution for surrogacy; it is a post-birth court order which makes the intended parents the legal parents of their child and permanently extinguishes the status of the surrogate and her spouse. Parents through surrogacy who want to be the legal parents of their child in the UK need one, wherever they live and whether their child is born in the UK or overseas.

To obtain a parental order, the intended parents must satisfy the family court that they meet the criteria, which include that at least one of them is ‘domiciled’ in the UK, Channel Islands or Isle of Man. To date, the only parental orders which have been refused by the UK court have been applications made where the parents do not meet the domicile criteria, so this is an important and non-negotiable requirement.
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What does domicile mean in a surrogacy case?

Domicile is a legal concept, which looks at your whole life. It is about where you consider your permanent home and roots to be, and it can be a very subjective test which takes into account your background, heritage and future intentions as well as the realities of decisions you have made about citizenship and where to live.

You are born with a 'domicile of origin' inherited from your parents at birth. That is never lost, but you can change it by acquiring a 'domicile of choice' in a new country by both living there and forming the intention to make it your permanent and indefinite home.
Unless you were born in the UK to UK-settled parents and have never lived elsewhere, that means that your domicile status may be an issue when you apply for a parental order. We deal with lots of cases where domicile needs to be proved – either because parents are from outside the UK and have settled here, or because they are British but living overseas.

Can I be domiciled in the UK for surrogacy if I live overseas?

Yes. If you have a domicile of origin in the UK (or even if you have acquired a domicile of choice at some point), the court will need to determine that you have not formed the intention to live elsewhere permanently or indefinitely. In practice the bar for establishing a domicile of choice is high, so parents often keep a UK domicile of origin despite living overseas for many years.

However, this is not a given and the court will want to know why you are living in your country of residence and what your future plans are. If you plan to return to live in the UK, either at a specific time or if something happens which is reasonably foreseeable, then you will have retained your UK domicile. Since questions of intention are always very subjective, the court will look at real practical decisions you have made as well as what you say.

How long do I have to have lived in the UK to be domiciled here for surrogacy?

There is no fixed time-frame. If you were born and raised elsewhere, you could become domiciled in the UK as soon as you arrive if you can show that you formed the intention to stay permanently and indefinitely with no plans to leave in any circumstances. Equally, if you don’t intend to stay permanently, you could live in the UK for decades without acquiring a UK domicile of choice. It all depends on your personal situation: the reasons you came to the UK, your future intentions and your feelings about the UK and the country you originate from. Even naturalising as British may not give a guarantee, although it is helpful evidence. In practice you will need to show how the practical decisions you have made back up what you say about your intentions.

How does the family court decide domicile in surrogacy cases?

You will be asked to prepare a detailed written statement dealing with the facts, so the court can determine whether you are domiciled here. If that does not give enough information, you may be asked to file further written evidence and/or you will be questioned in the witness box as part of your parental order application. The court can also ask for other things to assist it in making a determination, including asking you to file legal arguments (which if you are represented would be the case anyway) or appointing an independent advocate to the court (who will be neutral rather than arguing for you).

The court will decide domicile on a case-by-case basis and every case is very personal. Domicile is ultimately a matter for the judge to determine on their assessment of the facts, but a good written court statement is always an essential first step.

How do I find out if I am eligible for UK surrogacy?

Since domicile is something which is assessed in a surrogacy case right at the end of the process, after your child is born, it can be tricky for intended parents to know if they will meet the criteria in advance. If you want to work with one of the UK’s non-profit surrogacy organisations (Brilliant Beginnings, COTS and Surrogacy UK) they will want some assurance that you are domiciled in the UK. If you are working with an independent surrogate or conceiving through surrogacy overseas then the issue of domicile may not be a block at the start, but you could get into difficulties further down the line when you apply for your parental order if you don’t meet the criteria.

This article was originally published by NGA Law