Surrogacy

By Jennifer Broatch, Associate, Family law team at Thorntons Law, Edinburgh

Surrogacy is an age old practice, which has taken place informally for many years, however has recently been in the media spotlight, principally for two main reasons.

Firstly, many celebrities now openly declare, in a way that they may not have before, that they have used the surrogacy process to begin or extend their families; Nicole Kidman, Cristiano Ronaldo, Kim Kardashian, Sarah Jessica Parker – the list is endless. Secondly, it is an area which is being targeted for U.K. wide law reform, in an effort to keep pace with the changing cultural landscape surrounding surrogacy and, as such, is very much in the news.

What, then, is the reality of choosing surrogacy in Scotland and what are the current legal rules which underpin such arrangements?

What is surrogacy?
Surrogacy is where another woman carries a baby for an infertile couple. There are two types of surrogacy, straight or host.

Traditional (Straight) surrogacy: TS
The surrogate uses her own egg fertilised with the intended father’s sperm. This is done by artificial insemination.

Gestational (Host IVF) surrogacy: GS
The surrogate carries the intended parent’s genetic child conceived through IVF, for which specialist doctors are needed Is surrogacy legal in the UK?

There are three approaches to surrogacy that a country can adopt:
1)     a complete ban (many countries in Europe ban surrogacy – for example, Spain, France and Italy);
2)     surrogacy being permitted in altruistic form only (an individual should not profit from surrogacy);
3)    surrogacy being 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 in this area suggests that the variety of what is classed as ‘reasonable pregnancy related expenses’ is vast – for example, the expenses 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 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” to the intended parents, 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 and this clearly has the potential to create great stress for the intended parents.

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 (although this is currently being reformed to include single applicants.) There are also other conditions which must be met, for a Parental Order to be granted.

Where neither intended parent is genetically related to the child or where a Parental Order is not applied for in time (there is a window of 6 months from the birth of the child in which to apply for the Parental Order) an Adoption Order has to be applied for.

As you would expect, 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. Another point to note is that 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 and therefore it is more of a “statement of intent” than any kind of contract that can be relied upon.
Despite that, most surrogacy 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.

Law Reform
The Law Commission and the Scottish Law Commission launched a joint consultation on Surrogacy in June 2019, in a bid to update and improve the law across the U.K. The key provisional proposals for reform are:

• The creation of a new ‘pathway’ to legal parenthood where the intended parents will be the legal parents from birth;
• The creation of a regulator for surrogacy and the creation of regulated surrogacy organisations who will oversee surrogacy agreements within the new pathway;
• In the new pathway - and potentially for all domestic arrangements – the removal of the requirement for a genetic link between the intended parents and the child (it is proposed that the genetic link is still required for international arrangements);
• The creation of a register to allow those born of surrogacy arrangements to access information about their origins;
• Unified guidance for international surrogacy arrangements on nationality and immigration issues;
• Potential provision for recognition of legal parenthood across borders, to help those who have had a surrogate child abroad to bring that child back to the UK; and
• In respect of payments, the consultation is asking questions of consultees on what payments intended payments should be able to make to the woman who will be surrogates.

This is an area of law and family life that is not straightforward and all potential parents to be (and surrogates) who are considering the surrogacy journey should make sure that they seek legal advice and support. 

By Jennifer Broatch