Surrogacy Laws in Scotland: Understanding the Legal Framework

Surrogacy is an increasingly common way for people to create a family, but it remains a complex process, particularly in Scotland, where specific laws govern its practice. This article breaks down the legal framework, highlights broader considerations, and provides practical guidance for those exploring surrogacy. Whether you are a prospective parent, a surrogate, or simply curious, this guide aims to help you understand the key issues involved.

The Legal Framework in Scotland

Surrogacy in Scotland is regulated primarily by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. While surrogacy itself is legal, it is important to note that:

Commercial Surrogacy is Prohibited: You cannot pay a surrogate beyond reasonable expenses.
Non-Enforceable Agreements: Any surrogacy agreement made between intended parents and a surrogate is not legally binding in Scotland.
Legal Parenthood: At birth, the surrogate is considered the child’s legal mother, regardless of genetic connection. If the surrogate is married or in a civil partnership, her spouse or civil partner is presumed to be the other legal parent unless they did not consent to the surrogacy arrangement.

This means that legal steps must be taken after the child is born to transfer parenthood to the intended parents.

Parental Orders: Transferring Legal Parenthood

To become the legal parents of a child born through surrogacy, intended parents must apply for a parental order. This process is crucial, as it:

Extinguishes the Surrogate’s Parental Rights: Legal parenthood is transferred solely to the intended parents.
Provides Legal Certainty: Without a parental order, the intended parents may face difficulties in making decisions about the child’s upbringing.

Steps to Obtain a Parental Order:

Eligibility: At least one intended parent must be genetically related to the child, and the application must be made within six months of the child’s birth.
Consent: The surrogate (and her spouse or civil partner, if applicable) must give informed consent to the order no earlier than six weeks after the birth.
Court Application: The intended parents must submit an application to the court, which will consider factors such as the child’s welfare.

An anonymised example:

Alex and Jamie, a married couple, entered into a surrogacy arrangement with Sarah. Sarah gave birth to the child, who was genetically related to Jamie. After six weeks, Sarah provided her consent, and Alex and Jamie applied for a parental order. The court granted the order, ensuring Alex and Jamie became the child’s legal parents.

Eligibility and Requirements

For Intended Parents:

At least one must have a genetic link to the child.
Must be aged 18 or over.
Can be married, in a civil partnership, or cohabiting.

For Surrogates:

There are no legal restrictions on who can be a surrogate, but surrogates are typically aged between 21 and 40 and in good health.
Surrogates often receive counselling and medical screening before proceeding.

Broader Considerations

While legal aspects are crucial, surrogacy also raises ethical, medical, and emotional questions:

Ethical Considerations: Ensuring all parties fully understand and agree to the arrangement without coercion.
Medical Considerations: The surrogate’s health and well-being must be prioritised, with comprehensive medical care provided throughout the pregnancy.
Emotional Support: Surrogacy can be emotionally complex for everyone involved. Counselling is highly recommended to navigate these challenges.

Upcoming Changes and Reforms

The legal framework for surrogacy in the UK, including Scotland, is currently under review. The Law Commission’s 2023 report on surrogacy proposes significant reforms, such as:

A New Pathway to Parenthood: Intended parents could become the legal parents from birth, removing the need for a parental order in some cases.
Clearer Regulations: Improved guidelines to protect all parties and provide greater clarity on reasonable expenses.

These reforms aim to modernise surrogacy laws and make the process more straightforward while safeguarding the interests of children, surrogates, and intended parents.

Conclusion

Surrogacy offers a path to parenthood for many, but it is essential to navigate the legal, ethical, and emotional aspects carefully. If you are considering surrogacy, seek professional advice early to understand your rights and responsibilities. With the law potentially changing soon, staying informed is more important than ever.

For tailored legal guidance, please contact our experienced Family Law solicitors on 01259 723 201 or contact help@randa-fa.co.uk and we would be delighted to assist.