What is surrogacy?
Put simply, surrogacy is when a woman carries a child for someone else who wants to be a parent but is unable to become so naturally. The legal definition of a surrogacy arrangement is one which entails a "woman who carries a child in pursuance of an arrangement, and made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by another person or persons".
Surrogacy can involve a variety of family compositions and use one of several medical methods. The surrogate mother can carry a child which is genetically hers and the commissioning man, or one which is the genetic product of the commissioning couple. The effect of the later method is that there is no genetic link between the surrogate and the baby. While originally surrogacy was most commonly used by opposite couples who were unable to have children of their own, recent trends have shown that surrogacy is now being used on an increasing scale by same sex couples.
Surrogacy is legal in Scotland, and indeed throughout the UK, but there are many, and not entirely straightforward, legal issues which a prospective surrogate and prospective intended parents should consider before proceeding with such an arrangement.
Who are the legal parents?
All too often, people contemplating surrogacy, and indeed people who assume that they have completed the process, are unaware that the intended parents do not automatically become the legal parents of the child after the birth. UK legislation provides that the legal parents of a child born through a surrogacy arrangement are the surrogate mother (regardless of whether she is genetically related to the child or not) and her husband or civil partner unless his or her consent to the artificial insemination or placing in the mother of the embryo or eggs was not given. If the gestational mother is not married or in a civil partnership, or her spouse or civil partner has not consented to the surrogacy, then the genetic father will ordinarily be the legal father. In other cases, a non-genetic father or second legal parent may become a legal parent, provided only that the stringent agreed fatherhood or agreed female parenthood conditions of the Human Fertilisation and Embryology Act 2008 are complied with. In all other circumstances, the intended parent(s) will require to ask the court to grant an order conferring on them a legal status of parent.
The process from Intended Parent to Legal Parent
So how is parentage transferred? The intended parent(s) must lodge an application for a Parental Order at court, and the eligibility requirements include:
- The application should be made within six months of the date of the child's birth;
- The child must already be living with the applicants
- The applicants must be domiciled within the UK
- The child must be genetically related to one of the applicants
- The surrogate mother (and her husband or civil partner if he or she consented to the insemination/implanting) must consent to the parental order being granted
- No payment will have been given or received in relation to the surrogacy, except for reasonable expenses and unless authorised by the court.
The granting of a parental order is not automatic. The relevant legislation must be adhered to and the court will consider whether or not the granting of the order is appropriate in the circumstances of the case.
The consent of the surrogate mother (and her husband/civil partner if applicable) is central to the parental order being granted. In Scotland, that consent must be committed to prescribed forms. The consent of the surrogate mother is ineffective if given by her less than six weeks after the child's birth. Although any previous notices of consent will be considered by the court, they are likely to limit the weight they attach to that consent. In effect, the surrogate mother can change her mind about giving consent to the handing over of the child at any point. A surrogacy agreement is unenforceable if the surrogate mother does indeed change her mind. The intended parents are therefore in a precarious position throughout the process until it is complete. The timing of an application is important, too.
It is important to note also however that the intended parent(s) can also change their minds, and so the surrogate mother can literally be left holding the baby.
It is interesting to note, however, that no application for a parental order in the UK has been refused on the grounds of payments having been made or received in contravention of the legislation. The courts have authorised such payments in previous cases having regard to the overall welfare of the child, and the effect on that child of not granting the order. Although all the UK cases which deal with the issue of payments in surrogacy arrangements have been heard in England, there is nothing to suggest that the principles laid down in these judgments would not be followed north of the border. As with time limits however, intended parents should nevertheless ensure that any payment or benefit conferred on a surrogate are modest and reasonable.
International Surrogacy Arrangements
Parties who travel abroad to countries where there are more willing surrogate mothers may often place too much reliance on the advice given to them by lawyers and clinics in those other countries, to the effect that they do not have to do anything on return to the UK once their legal parentage is established in the foreign jurisdiction. This is not the case. The transfer of legal parentage must be established in accordance with Scots law.
As the law currently stands, applications for a parental order must be made by two people, with the effect that single people are not eligible to apply. However, in a case heard in England in 2016, the court held that this law is incompatible with human rights law, and it is expected that the law will be amended in this regard.
Alternatives to Surrogacy
The law relating to surrogacy is complex and can be riven with risks and hazards. Individuals who are either considering their options on how to become a parent (or who are faced with a situation where a child has been born to a surrogate who has withdrawn her consent and wishes to keep the child) may wish to fully consider alternatives to surrogacy. Adoption may be an attractive alternative, and applying for parental rights and responsibilities and well as residence in respect of a child who has been born to a surrogate mother who has changed her mind is another option to consider.
Whatever option prospective parents decide to pursue, expert legal advice should always be sought to ensure that the correct procedures are followed and the law is complied with.
Get in touch with our family team
At Harper Macleod, our Family Law solicitors are experienced in assisting clients with all aspects of child law.
If you would like to find out more and how we could help, please get in touch.