Posted on Feb 05, 2019 in Family Law by Jennifer Broatch
The media is reporting the news that Kim Kardashian and Kanye West are apparently having another baby via a surrogate, having already had a baby girl using a surrogate last year. Robbie Williams and his wife Adya Field also recently confirmed on social media, that they had also had a third child via the surrogate. We often hear of surrogacy in the context of Hollywood celebrities, rather than as an option available to want-to-be parents closer to home. What, then, is the reality of choosing surrogacy in Scotland and what are the legal rules which underpin such arrangements?
Is surrogacy legal in the UK?
There are three approaches to surrogacy that a country can adopt: 1)complete ban; 2) permitted in altruistic form only (an individual should not profit from surrogacy); or 3) permitted in a commercial form. Currently, the UK allows for surrogacy in an altruistic form. In theory, this means surrogacy is legal so long as the surrogate receives no payment or benefit from the intended parents.
In practice however, surrogate mothers are permitted to claim ‘reasonable pregnancy related expenses’. Case law suggests that the variety of what is classed as ‘reasonable pregnancy related expenses’ is vast – for example they could cover loss of earnings, travel costs for clinic appointments and maternity clothing.
While other countries, such as the United States, do allow commercial surrogacy, using a surrogate overseas may give rise to immigration difficulties when bringing the child to the UK. In all circumstances, it is crucial to seek legal advice prior to entering into any arrangements.
In Scotland, who are the child’s legal parents?
In Scotland, the surrogate is considered the child’s legal mother until a court orders otherwise. She will hold all parental rights and responsibilities in relation to the child. If she is married or in a civil partnership, her spouse will be considered the father or other parent regardless of any biological connection to the baby.
The intended parents are not legally the child’s parents until a Parental or Adoption Order is made. This means that, as the child’s legal mother, the surrogate cannot be forced to hand the child over unless an order of court is granted. Even where she willingly gives the child to the intended parents, they will still need to apply to the courts and go through the legal process for obtaining such an order.
In theory, the surrogate mother or the intended parents may change their mind at any point of the process.
What are Parental and Adoption Orders?
A Parental Order can only be applied for if at least one of the intended parents is genetically related to the child. This is a lengthy process and cannot be applied for by a single person.
Where neither intended parent is genetically related, or where a Parental Order is not applied for in time, an Adoption Order has to be applied for. During the court proceedings, the court will consider the welfare of the child first and foremost when deciding whether to grant the order or not. It is never guaranteed that an order will be granted.
Can a surrogacy Agreement help?
A surrogacy agreement can be put in place between the surrogate and the intended parents. It is designed to confirm in writing what the role and responsibilities of each party will be. However, surrogacy agreements are not enforceable in Scottish courts. Most agencies in the UK will still recommend that parties enter into an agreement to outline everyone’s expectations. It is important to remember that, while useful, an agreement of this nature will have no legal effect in forcing the surrogate to give the child to the intended parents.
It has been proposed that making surrogacy agreements legally binding would remove a number of issues which are currently encountered. In a bid to update the law, the Scottish Law Commission has added surrogacy to its Tenth Programme of Law Reform 2018-2022.
The issue with allowing surrogate mothers to receive financial compensation, is that the child could be seen as more of a commercial commodity than a human being. Whilst this might be the case, a legally binding agreement which outlines the financial compensation to the surrogate mother, and provides confirmation that the intended parents will receive the child at birth, would allow for a better degree of certainty when the child is born. This could provide incentive to more women to become surrogate mothers if they know that they will benefit financially. However, it is acknowledged that there should be a cap on the amount that a surrogate mother can ask for. Without a cap in place, fees could escalate out of control and women consider surrogacy purely for financial reasons. As such, there should still be checks in place as to who can become a surrogate mother and what their reasons are for doing so.
With regards obtaining an order from the courts for parental rights and responsibilities, it would be preferable for this to be done either before the birth of the child or immediately upon the birth. This would allow for the intended parents to make decisions for their child from the offset, without having to go through a long and protracted court process.
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. Our experienced family law team have experience in assisting couples with surrogacy arrangements and adoptions. Call us on 03330 430 150 for a chat or contact us to book an appointment.
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