All the information you need to know about surrogacy arrangements in Scotland

Using medical intervention to conceive is not always a bad idea for some parents, and alternative reproductive technologies are becoming more and more popular worldwide. In Scotland, surrogacy is legal and can be a good way for people to become parents. This blog explains Scotland’s current legal position on surrogacy agreements and highlights important issues to be mindful of if you or your spouse decide to use a surrogate in the future or if you’re thinking about being a surrogate yourself.

What exactly is surrogacy?

A Surrogacy is when someone else bears a child for one or more intended parents. Traditional surrogacy and gestational surrogacy are the two types of surrogacy recognised under family law. Although it is a technical distinction, it is significant because a child’s biological relationship with their legal parent raises a number of issues, including immigration-related ones. It is advised that you obtain immigration guidance right away if you are thinking about entering into a surrogacy agreement with an international surrogate or if you and your partner are not from the same country. Which legal pathway to use to seek a court order and who is considered the child’s biological parents depends on the type of surrogacy route you choose.

Surrogacy Agreement Law and Regulations

As long as surrogacy agreements are not commercial in nature, they are legal in Scotland. Paying a surrogate to conceive a child on behalf of intending parents is illegal. Surrogates are permitted to deduct “reasonable expenses” that they incurred during their pregnancy. This can cover things like maternity clothes, lost wages, and travel expenses to doctor’s appointments.  The court will have to decide whether or not the costs are considered reasonable in each situation, especially when the intended parents need to apply for a parental order.  

Two significant pieces of legislation—the Surrogacy Agreements Act of 1985 and the Human Fertilisation and Embryology Act of 2008, or “HFE Act”—control surrogacy agreements. The legal foundation for intended parents to request a parental order is established by the HFE Act, which makes it important.

Legally, the surrogate is considered the child’s biological mother until a court order is issued. On the grounds that they are married to or in a civil partnership with the surrogate, her spouse can be regarded as the legal parent even if they are not biologically related to the child.

 This might not be the case if they did not consent to any artificial insemination or if the child is genetically theirs because the intended father’s embryos or reproductive cells were donated. The surrogate and her partner would, however, be granted parental rights and obligations by the law in effect at the time of the child’s birth.

Therefore, it is essential that intending parents think about the legal consequences of such a plan before becoming pregnant to be ready to request a parental order when the time comes.

Submit a Parental Order Request

A parental order can only be requested in cases where it can be shown that one of the intended parents is genetically related to the kid, and it cannot be requested until the infant is six weeks old. Applications must be submitted no later than six months after the child’s birth. If the child’s intended parents are not genetically related, as may occur when embryos or human reproductive cells are donated, an adoption order will need to be requested. The child’s residence with the applicants (intended parents) at the time of the application, where they reside in the United Kingdom, and the surrogate’s and her partner’s, if applicable, free and unconditional consent to the parental order—based on their full understanding and awareness of the order’s consequences—are additional requirements that must be proven. The fairness of the arrangement must be proven to the court.

Surrogacy Arrangements

Written surrogacy agreements that are signed at any point before or after the child is born are enforceable in Scottish courts in the event of a dispute. A surrogacy agreement can be useful since it states the desire to transfer paternity and sets out everyone’s expectations in this regard. This guarantees that all parties are aware of the arrangement, and establishing one before a child is conceived can help to minimise harm to the child and foster the principle of acting in their best interests.

To determine whether the current regulatory structure adequately protects all parties involved, the Scottish Law Commission recently conducted an examination into it in collaboration with the Law Commission of England and Wales. The commissions released several suggestions to enhance the existing legislation. The government has stated that future legislative reform is on the table, even though no steps have been taken to put these recommended changes into effect. To safeguard their future parental rights as well as the child’s rights, people who are thinking about surrogacy in the future should keep an eye on this area and seek legal counsel if they decide to move forward with a surrogacy agreement. The legislation governing surrogacy agreements is complicated, and courts will prioritise the child’s best interests in any ruling.