Fertility law in Scotland governs the legal aspects of assisted reproduction and parenthood, including the rights and responsibilities of those involved in fertility treatment, surrogacy, and the treatment of embryos. Understanding fertility law is essential for anyone considering either fertility treatment or undertaking an alternative pathway to parenthood, such as surrogacy.
What is Fertility Law?
Fertility law covers a wide range of issues related to reproductive health and assisted reproductive technologies (ART), such as IVF (in vitro fertilisation), egg or sperm donation, and surrogacy. It establishes the legal framework that regulates how these treatments should be carried out, who has legal parental rights, and how individuals’ rights are protected.
IVF and Assisted Reproductive Technologies
In Scotland, IVF is the most common form of fertility treatment. IVF involves taking eggs from a woman and sperm from a man (or a sperm donor), fertilising them in a lab, and then transferring the resulting embryos into the woman’s womb.
The law regarding IVF and other assisted reproduction treatments is governed by the Human Fertilisation and Embryology Act 2008.
Under this law:
- Both the woman receiving treatment and her partner (if applicable) are required to give informed consent before treatment begins. This ensures they understand the risks, process, and potential outcomes.
- From April 2005, if a person uses donor sperm or eggs, the donor’s details are recorded. However, the donor’s identity is kept confidential, unless the child born from the treatment reaches the age of 18 and wishes to know their biological origins.
Parental Rights and Parentage
One of the most important aspects of fertility law concerns parental rights and responsibilities. In Scotland, the legal mother of a child born through IVF is the woman who carries and gives birth to the child. However, establishing the legal father or second parent can be more complex, especially in cases involving sperm donors, same-sex couples, or surrogacy.
For a man (or a second parent) to be legally recognised as the father or second parent of a child born through IVF, they must meet stringent conditions as set out by the 2008 Act.
For same-sex couples using fertility treatment, both partners can be recognised as legal parents, provided that, again, certain conditions are met, including (but not limited to) that both give their consent.
Surrogacy in Scotland
Surrogacy involves a woman carrying a child for another person or couple. The surrogate mother carries the pregnancy to term, and it is then intended that the surrogate “gives” the child to the intended parents. In Scotland, the law surrounding surrogacy is complex, and there are a variety of important legal points and consequences that both surrogates and intended parents should be aware of.
Under Scottish law, the surrogate mother (the woman who gives birth) is considered the legal mother of the child, even if the child was conceived using another woman’s egg. Equally, just because a man’s sperm is used, it does not necessarily mean that he will be considered the legal father of the child – there are stringent conditions for this. This means that the intended parent/s will require to apply for a parental order to transfer legal parenthood from the surrogate to them/themselves. This process requires a court application and so legal advice should be taken from an expert in this field prior to any treatment being undertaken.
Donor Conceived Children
In the past, children born via sperm or egg donation had no legal right to know about their biological origins. However, since 2005, the law has changed in Scotland. Under current rules, donor-conceived children have the right to access information about their donors once they turn 16 or 18 – dependent on the information they are looking for. The law requires that sperm and egg donors are registered and that their details are kept on record.
What Are the Key Legal Steps for Those Seeking Fertility Treatment?
- Pre-Treatment Consent: Before undergoing fertility treatment, individuals or couples must provide informed consent to the clinic, ensuring they understand the process and potential outcomes. This usually requires speaking with a legal advisor who will, in turn, confirm to the clinic that the necessary advice has been given.
- Parental Rights: For couples, it’s important to ensure that both parties are legally recognised as parents. For sperm or egg donors, or for those using surrogates, establishing parental rights may require legal proceedings, such as applying for a parental order in surrogacy cases.
- Surrogacy Considerations: The arrangements in a case of surrogacy must be carefully considered before commencing. Intended parents will need to navigate the legal processes and may need to apply for parental orders to become the child’s legal parents after birth.
- Donor Information: If using donated sperm or eggs, the donor’s information will be kept confidential, but donor-conceived children will have the right to access these details when they turn 16 or 18 – dependent on what information they are seeking.
Our experts are here to guide you through the legal aspects of fertility treatments and reproductive rights, helping you understand what to expect and how to navigate the process at every stage.
