Forms of alternative reproductive technology are on the rise internationally, and for some parents, conceiving a child without medical intervention is not a viable option. Surrogacy is an option for individuals in Scotland who wish to become parents. If you or your partner wish to engage a surrogate in the future, or if you are contemplating becoming a surrogate yourself, this blog delineates the current legal position on surrogacy arrangements in Scotland and identifies matters that you should be aware of.
What is a surrogacy arrangement?
A surrogacy arrangement is a situation in which an individual produces a child on behalf of an intended parent or parents. Traditional surrogacy and gestational surrogacy are the two varieties of surrogacy. Although the distinction is technical, it is crucial because it raises numerous concerns, such as immigration issues, as a consequence of a child’s biological connection to their parent. It is advisable to obtain immigration advice at the outset if you are contemplating a surrogacy arrangement with an international surrogate or if you and/or your spouse are of a different nationality. The appropriate legal avenue for applying for an order with the courts and the characterisation of the child’s parents at birth are also determined by the form of surrogacy avenue you select.
The Scottish UK Law – Surrogacy law
Surrogacy arrangements are permissible in Scotland provided that they are not commercial in character. It is unlawful for intended parents to compensate a surrogate for the conceiving of a child. Surrogates are permitted to claim “reasonable expenses” that are associated with the pregnancy during their tenure as a surrogate. This may encompass expenses associated with medical appointments, loss of income, and the purchase of maternity apparel, among other things. The court will be responsible for determining whether the expenses are reasonable in each case.
The Surrogacy Arrangements Act 1985 and The Human Fertilisation and Embryology Act 2008 (‘HFE Act’) are two critical pieces of legislation that regulate surrogacy arrangements. The HFE Act is significant because it establishes the legal foundation for prospective parents to request a parental order.
The surrogate is legally recognised as the child’s legal mother until a court order is issued. If she has a partner, that partner could be considered the other parent, regardless of whether they are biologically connected to the child, on the basis that they are married to or in a registered civil partnership with the surrogate. If the intended father’s gametes or reproductive cells were donated to ensure that the child is genetically theirs, or if they did not provide their consent to any artificial insemination, this may not be necessary. However, the surrogate and her companion would be conferred parental rights and obligations through the application of the law at the time of the child’s birth. Consequently, prospective parents must evaluate the legal implications of such an arrangement before conception to be adequately prepared to apply a parental order at the appropriate time.
Apply to a parental order – Solicitor
A parental order is dependent upon the demonstration that one of the intended parents is genetically related to the child, and it is not possible to apply for one until the child is six weeks old. Applications must be submitted within six months of the child’s birth. If neither of the intended parents is genetically related to the infant (possibly due to the donation of human reproductive cells or gametes), an adoption order will be required. Additionally, it is necessary to establish that the child is residing 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 unconditionally consented to the parental order on the basis that they are fully informed and understand the repercussions of such an order. This agreement’s altruistic nature must be demonstrated to the court.
Surrogacy Agreements Enforceable
Scottish courts do not enforce written surrogacy agreements (engaged into at any time before or after the child’s birth) in the event of a dispute. It can be beneficial to have a surrogacy agreement, as it is indicative of the intention to transfer parentage and explicitly outlines the expectations of all parties concerned. This guarantees that all parties are cognizant of the terms of the agreement, and the implementation of such a document before the conception of a child can mitigate the child’s suffering and advance the principle of acting in their best interest.
The Scottish Law Commission, in collaboration with the Law Commission of England and Wales, recently investigated the current regulatory regime to determine whether the law adequately safeguards all parties involved. Several recommendations were published by the commissions to enhance the existing law. Although no action has been taken to date to implement these suggested changes, the government has stated that future legislative reform is on the agenda. Therefore, it is crucial for individuals who are contemplating surrogacy in the future to monitor this area and seek legal counsel if they choose to proceed with a surrogacy arrangement. This will ensure the preservation of the child’s rights and their future parental rights. The law governing surrogacy arrangements is intricate, and courts will prioritise the child’s best interests in any order.
Family Law Team
Please do not hesitate to contact our Family Law Experts if you wish to further discuss this matter.
