HM Insights

Surrogacy in Scotland – what you need to know in terms of the law

Surrogacy is a hot topic again, with the news that Robbie Williams and Ayda Fields – the married couple who are also X-Factor judges - have welcomed a third child who was born via a surrogate mother.

I recently contributed to a discussion on the subject on the Kaye Adams Show on Radio Scotland (you can listen here until 11 October 2018) and it is an issue that always raises questions in terms of legality.

There are many reasons why a couple may choose to go down the surrogacy route when starting or expanding their family, and there are just as many legal considerations to take into account when deciding whether this path is for them.

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Is it legal?

Surrogacy, where one woman carries a baby for a couple who cannot conceive naturally, is legal in the UK as long as it is done on a non-commercial basis. This means that no payments, save for 'reasonable expenses', are to be made in exchange for the surrogacy arrangement.

What are 'reasonable expenses'?

Reasonable expenses can include any costs incurred by the surrogate in relation to the pregnancy, such as travel expenses to get to medical appointments, the purchase of maternity clothes, and loss of earnings if time off work is required. This list is not exhaustive, and could be more, for instance, if the surrogate has twins.

What are the risks?

Aside from medical risks, all parties involved in a surrogacy arrangement must be alive to the very real legal risks which could befall them.

At birth, the child will be considered in law as the child of the surrogate and her spouse or partner if she has one (and it cannot be shown that the spouse/partner did not consent to the surrogacy medical treatment), even if they are not genetically related to the child. In order to have parentage transferred to the intended parents (or 'commissioning couple'), the intended parents must apply to the Court for a Parental Order, and it is important that they do this in good time. The Order must be applied for within six months of the baby's birth.

The consent of the surrogate (and her spouse/partner if applicable) is central to the Parental Order being granted, and it is ineffective if given before the child is six weeks old. Surrogacy 'Agreements' or 'Arrangements' are not enforceable in law.

In effect, therefore, the surrogate could change her mind about giving consent, and handing over the baby, at any point until the Parental Order is granted, despite any 'Agreement' she may have signed previously. Although this may be rare in practice, it is certainly not unheard of and intended parents ought to be aware of this potential risk.

A Court of Appeal case in England in 2017 dealt with the fallout after the relationship between the surrogate and her husband and the intended parents broke down, and the surrogate refused to hand the child over after birth or consent to the Parental Order. After considering the best interests of the child, while a Parental Order was not granted, the Court ruled that the child should live with the intended parents, and have contact with the surrogate and her husband six times per year.

The judge in this case commented that despite this case involving an experienced surrogate, arrangements had still gone wrong and triggered "a harrowing experience" for all concerned. This was an example of the complex consequences which can arise from entering into this type of arrangement.

What happens in cases of international surrogacy?

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 countries, and assume that there is nothing further they have to do when they arrive back home with the baby. This is not the case. The child will be treated under UK law as being the child of the surrogate, despite any foreign law to the contrary, and parentage will not be transferred until the Parental Order is granted here.

Can single people become parents through surrogacy?

At the moment, no. Applications for Parental Orders must be made by two people together. However, an English case in 2016 heard that this rule in incompatible with the human rights law, and it is thought that a change to UK law in this regard is on the horizon.

What is the process of becoming the legal parents?

The intended parents must lodge an application for a Parental Order at Court. The granting of the Order is not automatic and the court will consider each case according to the particular circumstances. The eligibility requirements include:

  1. The application should be made within six months of the child's birth
  2. The child must be living with the applicants
  3. The applicants must be domiciled in the UK
  4. The child must be genetically related to at least one of the applicants
  5. The surrogate mother (and her spouse/partner if applicable) must consent to the Order being granted
  6. No payment has been given or received, except for reasonable expenses.

The Court will appoint a Reporting Officer, who will confirm whether the required conditions are satisfied and witness any consents required, and a Curator ad Litem whose duty is to safeguard the best interests of the child. The Reporting Officer and Curator ad Litem (often the same person in one case) are required to report back to the court within four weeks of being appointed.

Once the reports are made available, a Hearing will take place at Court at which the parties may require to be present, or be represented by solicitors. After due enquiry, the Court may make the Parental Order.

If granted, a copy of the Order will be sent to the Register General which will trigger an entry being made in the Parental Order Register. The court process is placed in a sealed envelope which ordinarily cannot be opened for 100 years. Importantly, however, the child him/herself can open the process once they reach 16, and could therefore discover the identity of the surrogate and potentially a sperm donor father, if they are not already aware of those identities.

A final thought

Assisting couples with Parental Orders after a successful surrogacy is rewarding, as we solicitors are able to help create a family.

However, the law relating to surrogacy is complex and punctuated with hazards, and as such prospective parents should take legal advice from a Family Law solicitor at the earliest opportunity to ensure that they are equipped with all of the relevant knowledge, correct procedures are followed, and the law is complied with.

At Harper Macleod, our Family Law solicitors are experienced in assisting clients with all aspects of child and family law.