Surrogacy: Can our babies born outside the UK become British?

 I am critically analysing a blog I read called “Immigration and nationality law following surrogacy agreements” that was posted by Nath Gbikpi on the 11th of October 2017 on the Free Movement law blog. The topic combines immigration, nationality and family law all together. The purpose of the blog is to give background to the law, factors to consider and where to find Home Office guidance about cases involving surrogacy.

The blog looked at surrogacy, which in a simplistic form is where a woman carries and delivers a baby for another couple or person. The Surrogacy Agreements Act 1985, under section 2(1) states that it is a criminal offence for a person on a commercial basis to initiate or take part in a surrogacy agreement in the UK. Due to this, most individuals or couples who want to take part in surrogacy opt for doing it outside the UK in countries like the USA and Ukraine. Would this mean that our babies born through surrogacy be British? Sadly, even if the parents are both British the answer is no.

This is due to the definition of “mother” and “father” by British nationality law. The babies are still subject to immigration law because they were born outside the UK and need a visa or to acquire the British nationality to be able to come into the UK. We therefore need to look as to what constitutes a mother or father under the British nationality law. Section 50(9) of the British Nationality Act 1981 states that: ‘for the purpose of this Act a child’s mother is the woman who gives birth to the child.’ and a father is ‘the husband at the time of the child’s birth of the woman who gives birth to the child.’   

Once it is defined who the mother and father is, what needs to be looked into is if that child could be born British. Then there are options that can cover legally what options there are there for the baby. One of them is a parental order. Parental orders, under section 1(5) of the British Nationality Act a child who is subject of a parental order made in UK court becomes British from the date of the order. Another option is to register the child as a British citizen, or a visa.

The blog was very well written, it had a clear structure that transitioned nicely the purpose of the blog was very clear since the beginning, it was clear step by step how the topic was developing. It had different sub sections and bullet points and case study examples helped to understand the statutes and the law that was given. It was easy to understand the law whilst reading the blog, it did not over complicate it with big legal words or commentary. The style was effective, paragraphs were short and always engaging. It treated the topic with sensitivity, and saw both ends of the spectrum. The blog  would appeal to a huge modern audience of in individuals and couples seeking to become parents through surrogacy and will explain clearly the law to them that would be helpful towards their goal of achieving a family.

Bibliography 

Gbikpi, N. (2017). Immigration and nationality law following surrogacy agreements – Free Movement. [online] Free Movement. Available at: https://www.freemovement.org.uk/immigration-nationality-law-following-international-surrogacy-agreements-introduction/ [Accessed 24 Oct. 2017].

Www2.southeastern.edu. (2017). CRITICAL ANALYSIS. [online] Available at: https://www2.southeastern.edu/Academics/Faculty/elejeune/critique.htm [Accessed 24 Oct. 2017].

Borders: Where our sovereignty and human rights end

The blog I read explained how on June 7, 2010, fifteen-year-old Sergio Hernandez, a Mexican national, and his friends were playing in a cement culvert that separates Ciudad Juarez, Mexico from El Paso, Texas in the United States. The boys amused themselves with a game: they would run up to the U.S. barbed wire fence that separated Mexico from the U.S., touch it, and then run away from the fence. While they played, Jesus Mesa, a U.S. federal border patrol agent, appeared on his bicycle and detained one of the boys. Observing this incident, Hernandez retreated beneath a pillar. Standing on the U.S. side, Mesa then aimed his gun across the border and fired at least twice; one of the shots hit Hernandez in the face. Hernandez was pronounced dead by Mexican police shortly thereafter. Shortly, Hernande’z parents sued Mesa for civil penalties, arguing that he violated Hernande’z rights under the 4th amendment of the U.S constitution.

The issues

The 4th amendment of the US constitution states “The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.” One of the aims of this amendment is to protect people’s rights from an unreasonable intrusion by the government. Isn’t Mesa shooting Hernandes an intrusion of his rights? Or do they simply not apply because Hernandes is not a US citizen, if so, is this just?

What this case reveals is that the US do not acknowledge situations or violations that happen beyond their borders. Is it just that the US official is not getting prosecuted when shooting a Mexican in Mexican soil? 60 feet should be enough for justice to apply.

Does a Mexican national standing 60 feet south of the border when he was killed by an U.S agent have any protection by the US constitution rights? Sadly, no. Hernandez can only be protected if he is an US citizen. Could it be argued that this is a narrow approach? Borders are more than a physical boundary between countries; they are also a containment of legal rights, where we have to be accountable for its violations and where a States sovereignty ends and begins. The US has a paradigm- in which constitutional protection is limited to non-citizens suffering violations by the US government on non US soil. Hernandez lawyers described the area where he was shot as a no mans land- where US officials can kill whoever without a consequence.

What can be done?

We need to broaden the narrow approaches that borders have-individuals should get protection and be accountable their actions. To obtain this, we need to expand our limited concept of the border as a technical, physical object, and instead look to the ways in which state sovereignty exerts control over individuals and spaces. If we can achieve a more broad border sovereignty we could attack the legal loop holes where there are no basic  human rights. It is not right that still to this day, we have this legal loop holes where we ignore our human rights, and we become insensitive to the actions from the state.