Posted on Sep 27, 2019 in Family Law by Alasdair Docwra
Solicitors in our Family team have been at the forefront of discussions around the reform of surrogacy law.
Partner Alasdair Docwra from our Family team in Edinburgh recently attended a two day Consultation in London held by the International Social Service (ISS) on “Draft principles for the protection of the right of the child in the context of surrogacy”. The lack of uniform regulation internationally leaves children born through surrogacy arrangements vulnerable to exploitation, and in practice may often amount to the sale of children. With surrogacy as a reproductive practice being on the rise, there is growing concern for the rights and the protection of children. The ISS, together with a group of experts, has been developing a set of internationally applicable principles to safeguard the rights of children born through surrogacy arrangements. The principles have been drafted to underpin arrangements in any state, whether surrogacy is recognised altruistically, commercially, or not at all. Alasdair Docwra was pleased to attend the Consultation event to discuss the draft principles.
Reform of surrogacy law in the UK
More locally and in the context of the UK, the Scottish Law Commission and the Law Commission of England and Wales published a joint Consultation Paper on “Building families through surrogacy: a new law” in June 2019. A team of our solicitors attended the Consultation event in Edinburgh on 9 September and had the opportunity to discuss their views on the proposals and ask questions.
The UK currently accepts surrogacy in an altruistic form, meaning it is legal so long as the surrogate receives no payment or benefit from the intended parents. The key principles underpinning the current law on surrogacy in the UK dates back to legislation passed almost 30 years ago. In light of societal changes, including attitudes towards what we view as a ‘family’, and the development of reproductive technology during this period, the current legislation is seen as out of date with modern practice. The Consultation Paper sets out provisional proposals for and questions about reform.
Whilst the number of surrogate births in the UK (and even more so in Scotland) is low, the impact a surrogacy arrangement has on the family life of the parties involved is significant. The overall aim of the proposed changes is to better support the parties involved, being the child, surrogate and intended parents. The Law Commissions hope that the proposed changes will create best practice in the UK, reducing the incentive to look abroad for surrogacy and in turn the legal problems arising from such cases.
Current legal position in Scotland
Under the current law in Scotland, the surrogate is automatically considered the child’s legal mother until court orders otherwise. The father or second parent will usually be the surrogate’s spouse or civil partner. The intended parents must make an application to the court to transfer legal parenthood and acquire parental rights and responsibilities by way of a Parental Order. In practice this process can take upwards of six months. This leaves the child in a state of legal limbo for a substantial period, as the intended parents cannot make decisions about the child in their care.
New proposals from the Law Commissions
One of the main proposals is to create a new “pathway” to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining the right to object for a short period after birth. The new pathway aims to provide greater certainty for all parties involved, allowing the intended parents to make important decisions about the child.
Other proposals include:-
- the creation of a regulator for surrogacy and the creation of regulated surrogacy organisations who will oversee arrangements under the new pathway;
- the removal of the requirement for a genetic link between the intended parents and the child where it is medically necessary (under the new pathway only);
- the creation of a register to allow those born of surrogacy arrangements to access information about their origins; and
- unified guidance for international surrogacy arrangements on nationality and immigration issues.
Our solicitors look forward to submitting our formal response to the Consultation shortly.
Detailed information about the proposed changes can be found on the Scottish Law Commission’s website. The Consultation is open until 11 October 2019. You can have your say and respond to the consultation here.
For further information and advice in relation to surrogacy or any other family matter, please contact a member of our Family team.
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