Rules on Surrogacy in Scotland

There can be a variety of circumstances where a couple may consider surrogacy. In the UK, surrogacy itself is not illegal and there are some surrogacy agencies, although those are unregulated. It is, however, illegal in the UK for money or other benefits to be given or received by either party, other than reasonable expenses. In other countries, such as Thailand, commercial surrogacy is legal, although it is usually unregulated.

Further complications arise if a couple in the UK appoint a surrogate based abroad, as this can lead to immigration problems when the couple then try to bring the child into the UK, as the child may need a visa. 

Frequently asked questions

The following are some of our most frequently asked questions when it comes to surrogacy.

What is surrogacy?

There are two forms of surrogacy:

  • In traditional surrogacy, the surrogate mother's egg is used, making her the genetic mother
  • In gestational surrogacy, the egg is provided by the intended mother or a donor

The egg is fertilised through in vitro fertilisation (IVF) and then placed inside the surrogate mother.

Examples of surrogacy include:

  • A family member who agrees to carry a baby for a female relative who is unable to carry a child herself (perhaps after a hysterectomy)
  • A female who agrees to carry a child for a same sex male couple
  • A married couple who wish to appoint a surrogate mother who is based overseas

Although these may, at first glance, seem like harmless arrangements, it is crucial that anyone considering a surrogacy arrangement seeks independent legal advice as far in advance as possible.

What is a surrogacy agreement?

This can be entered into between the surrogate and the intended parents.  Although the law is clear that surrogacy agreements/arrangements are not enforceable in the UK, if you have decided to have a child through surrogacy it is a good idea to consider entering into such an agreement so that everyone involved in the process knows where they stand.

Many things can be covered in the agreement. These can include:

  • Arrangements for during pregnancy, such as payment of the surrogate mother’s reasonable expenses (any other form of payment or benefits is illegal in the UK)
  • Arrangements for once the baby has been born, including who the parents will be and whether the surrogate will play any role in the child’s life

As such an agreement is not enforceable, the parties enter it on the basis of trust and as such, there is always a risk that it could be breached.

Do we need a surrogacy agreement?

It is sensible to have a surrogacy arrangement in place, so that everyone knows in advance what is agreed.  It is illegal in the UK for money or other benefits to be given to the surrogate, although payment of reasonable expenses is allowed.  However, such an arrangement cannot be legally enforced in the UK and, as such, is based on trust.  So there is always the chance that the surrogate could change her mind once the baby is born and refuse to hand the child over. 

Are surrogacy agreements enforceable?

No. Despite the terms of any surrogacy arrangement, if a surrogate refuses to hand over the child after giving birth, then she cannot be forced to. The parents could take the surrogate mother to court to seek residence (custody) or contact (access) to the child but there is no guarantee that the court will grant them that.

Who are legally the child's parents?

When the surrogate hands the child over, the parents still need to apply to the court to be legally recognised as the child's parents. In Scotland, this is done by applying to the court for a Parental Order or to formally adopt the child (depending on the circumstances of the case). By that process, the surrogate will lose her parental rights and responsibilities for the child. Until that happens, the parents have no automatic legal rights in respect of the child.

There are various requirements for the application process:

  • The application must be made in good time and normally within six months of the child’s birth
  • The surrogate mother will need to provide her consent (as will her husband or civil partner)
  • The child must be living with the parents at the time the application is made
  • The applicants must be husband and wife, civil partners of each other or two people who are living in an ‘enduring family relationship’
  • Both applicants must be at least 18 years old, and
  • At least one of the applicants must be domiciled in the UK

When considering whether to grant the application, the welfare of the child throughout its life is the court’s paramount consideration.

What rights does the surrogate mother have?

Regardless of the terms of any surrogacy arrangement entered into, in law, the surrogate mother will be treated as the child’s legal mother until such time as a Parental Order or Adoption Order is granted. This means that she will hold full parental rights and responsibilities for the child and she cannot be forced to hand the child over without an order of court.

If the surrogate is married or in a civil partnership, then her husband or civil partner will be the legal father or ‘other parent’ regardless of whether there is a biological connection to the child.  In turn, this means that they will also hold full parental rights and responsibilities for the child.

How can Thorntons help?

If you are considering surrogacy then it is crucial that you get legal advice from the outset, as the legalities of surrogacy are extremely complex. Thorntons Family Law can guide you through the processes, draft a surrogacy agreement and ensure you know your legal position and options.

At Thorntons Family Law, we offer an initial free no-obligation chat over the phone to outline your options and the possible costs.

Depending on your case and circumstances, the next step is to come into one of our local offices to meet a Family Law Solicitor about your case and the way forward.

Call us on 03330 430 150 for a chat or contact us to book an appointment.

How much will it cost?

We are always clear to clients about the potential costs of any option and offer a range of payment options. In some cases we can offer clients a fixed price package. If we cannot offer a fixed price service, we charge based on the time we spend on your case, including meetings, emails, phone calls and court representations. Depending on your case and circumstances, you may also need to cover outlays, such as court costs or payments to independent experts. We will set out our fees and likely extra costs for you at the start and keep you informed of any possible changes as your case progresses.

Frequently asked questions

We receive many questions about surrogacy and the surrogacy process. We have answered some commonly asked questions below

Read frequently asked questions

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Key Contacts

Amanda

Amanda Wilson
Partner

+44 1382 229111
awilson@thorntons-law.co.uk

Graham

Graham Harding
Partner

+44 1738 621212
gharding@thorntons-law.co.uk

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