For some parents, conceiving a child without medical intervention is not a violable option, and forms of alternative reproductive technology are on the rise internationally. For individuals in Scotland, surrogacy can be a viable route to parenthood. In this blog, we break down the current legal position on surrogacy arrangements in Scotland and identify matters that you should be aware of in the event that you, or your partner, wish to engage a surrogate in the future, or if you are considering being a surrogate yourself.
What is Surrogacy?
A surrogacy arrangement is where another individual carries a child on behalf of an intended parent or parents. Surrogacy comes in two forms: traditional surrogacy or gestational surrogacy. While technical, the distinction is important as many questions arise as a result of a child’s biological connection to their parent, including immigration issues. If you are considering a surrogacy arrangement from an international surrogate, or you and/or your partner are of a different nationality, it is recommended that you seek immigration advice at the outset. The type of surrogacy avenue that you choose also determines the appropriate legal avenue for applying for an order with the courts, and who is characterised as the child’s parents at birth.
The Law
In Scotland, surrogacy arrangements are lawful so long as they are not of a commercial nature. It is illegal for intended parents to pay a surrogate to conceive a child. Surrogates can claim “reasonable expenses” incurred which are related to the pregnancy whilst being a surrogate. This can include travel costs to medical appointments, loss of earnings, and maternity clothing, etc. It will be a matter for the court in each case to determine whether or not the expenses are deemed to be reasonable.
There are two important pieces of legislation that govern surrogacy arrangements: The Human Fertilisation and Embryology Act 2008 (‘HFE Act’) and The Surrogacy Arrangements Act 1985. The HFE Act is important in that it sets out the legal basis for intended parents applying for a parental order.
The surrogate is regarded in law as the child’s legal mother until such time as a court order is granted. If she has a partner, then that partner could be considered the other parent irrespective of whether they are biologically connected to the child, on the basis that they are married to or in a civil partnership with the surrogate. This may not be the case if they did not provide their consent to any artificial insemination, or if the intended father’s gametes or reproductive cells were donated so that the child is genetically theirs. Nonetheless, and by application of the law at the time of the child’s birth, the surrogate and her partner would be vested with parental rights and responsibilities. It is important therefore, that for intended parents, they consider the legal implications of such an arrangement prior to conception to be adequately prepared to apply for a parental order at the appropriate time.
Apply for a Parental Order
A parental order cannot be applied for until the child is 6 weeks of age and can only be sought where it can be demonstrated that one of the intended parents is genetically related to the child. Applications are to be made within 6 months of the child’s birth. In the event that neither of the intended parents are genetically related to the child (which can be the case when gametes or human reproductive cells are donated), then an adoption order will need to be sought. Other factors that need to be demonstrated are that the child lives with the applicants (the intended parents) at the time of the application, that they are domiciled in the United Kingdom and that the surrogate and her partner, if applicable, have freely consented to the parental order unconditionally on the basis that they are fully informed and understand the consequences of such an order. It must be demonstrated to the court the altruistic nature of the agreement.
Enforceability of Agreements
In the event of a dispute written surrogacy agreements (entered into at any time either before or after the child’s birth) are not enforceable in Scottish courts. A surrogacy agreement is indicative of the intention to transfer parentage and clearly sets out everyone’s expectations in that effect and so can be helpful. This ensures parties are aware what is being agreed and putting one in place prior to a child’s conception, can help to minimise the harm to the child and promotes the ethos of acting in their best interests.
Recently, the Scottish Law Commission in conjunction with the Law Commission of England and Wales, carried out an investigation into the current regulatory regime to ascertain whether the law adequately protects all parties at play. The commissions published a number of recommendations to improve the current law. While no action has been taken to date to implement these suggested changes, the government has indicated that future legislative reform is on the agenda. As such, for individuals considering surrogacy in the future, it is important to watch this space and consider legal advice should they wish to proceed with a surrogacy arrangement for the protection of their future parental rights, and the rights of the child. The law pertaining to surrogacy arrangements is complex, and courts will account for the child’s best interests at the forefront of any order.
If you would like to discuss this further, please get in touch with our Family Law Experts.
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