Surrogacy in the UK is steadily becoming more and more common. In 2011 only 121 parental orders were made compared with 368 in 2018. The new BBC series ‘The Surrogates’ follows the high and lows of the surrogacy journey for 5 woman and would-be parents. It starts right at the beginning of the process and explains how such arrangements are formed and continues through the pregnancy. One woman mentions that her Mum was initially concerned about the risks and uncertainties associated with the legalities of Surrogacy. What, then, is the current legal position for Surrogates and the would-be parents here in Scotland?
Is surrogacy legal in Scotland?
Currently, Scotland 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. However, in practice, 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. Therefore, 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 or indeed for the would-be parents to take on responsibility 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. Our experienced family law team have assisted many couples with surrogacy arrangements and adoptions. Call us on 03330 430150.