Parenthood is tough but the journey can also be extremely challenging.

For those who cannot conceive naturally, surrogacy can be the answer but is it legal and what are your rights?

While the topic receives more and more airtime on our television screens, a major legal shake-up is underway so what you see on TV or film might not be entirely accurate.

So what’s the situation in Scotland now, and what might change?

What is surrogacy?

Let’s start with the easy bit! Surrogacy is where a woman carries a child for one or two Intended Parents (including same-sex) before giving up her parental status.

There can be many reasons for appointing a Surrogate. It might be due to fertility issues or where illness has resulted in a woman being unable to carry a pregnancy.

There are two types of surrogacy:

Traditional surrogacy where the Surrogate mother’s egg is used and is fertilised by the intended father or a donor or

Gestational surrogacy, where the intended mother or a donor provides the egg, which is fertilised using IVF by the intended father and then placed inside the surrogate mother. Alternatively, the intended mother’s egg is provided and donor sperm is used to fertilise the egg via IVF.

Is it legal?

In the UK, the quick answer is yes but it’s highly complex and unregulated, for now.

What’s ILLEGAL in the UK is commercial surrogacy – profiteering from it. A Surrogate is only allowed to receive ‘reasonable expenses’ and cannot be paid.

The Law Commissions of Scotland and England and Wales are currently consulting on proposed major reforms to surrogacy law in the UK, commenting that the current laws are ‘outdated and should be improved to support the child, Surrogates and Intended Parents’. We’ll come back to this further down the blog…

What is a Surrogacy Agreement?

Surrogacy often takes place between friends and families and can largely operate on trust but what happens when it goes wrong?

The Surrogate and Intended Parents should ideally have a Surrogacy Agreement prepared to reflect how they wish the process to work. Although not legally enforceable in the UK, they are sensible to have. Indeed, some clinics and hospitals will insist on having one in place before the baby is born.

A typical Surrogacy Agreement would outline the practicalities from how much time the birth mother can spend with the baby before he / she is handed over to the Intended Parents, to what happens if the baby becomes ill before or immediately after birth. It might also state who will be present at the scans and birth and outline the level of ‘reasonable expenses’ to be paid to the Surrogate.

Once the child is born, who are the legal parents?

As shown in the recent BBC3 programme The Surrogates, the Intended Parents currently have no legal rights whatsoever at birth. The Surrogate mother will be treated as the legal mother and can indeed refuse to give up the child at birth.

If she is married or in a civil partnership, then her spouse/civil partner will be presumed in law to be the other legal parent (unless they did not provide their consent to the Surrogate being inseminated). If she is not married and the intended father fertilised the egg, then he will legally be the baby’s father.

How do you become the legal parent/s?

To have the Intended Parents legally recognised, giving them full parental rights and responsibilities, an application must be made to Court for a Parental Order. However, this can be a lengthy process and, in the meantime, the Intended Parents’ ability to make decisions can be compromised.

There are strict timescales and the Parental Order must be applied for within six months of the baby’s birth and the Surrogate must provide her consent, alongside her spouse or civil partner.

Currently, to apply for a Parental Order, at least one of the applicants must also have a genetic link to the child, meaning that those who have opted for gestational surrogacy using donated sperm and eggs and have no genetic link to the child, cannot apply. Instead, they would have to apply to Court to formally adopt the child or, alternatively, apply for Residence (custody) of the child.

So what’s likely to change going forwards?

As mentioned above, huge changes are on the cards, with a draft bill likely to be available by the end of next year.

The most likely change is the creation of a new pathway to legal parenthood. Provided that certain requirements have been met in advance, then the Intended Parents will become the child’s legal parents from the moment of birth, without the need to apply to Court for a Parental Order.

It’s also possible that a specific regulation will be introduced for Surrogacy Agreements including safeguards such as counselling and independent legal advice for all parties involved.

International Surrogacy Agreements could become legally recognised on a country-by-country basis.

The Consultation has also sought feedback on the payment of expenses to Surrogates as it is recognised that the current provision for ‘reasonable expenses’ is unclear and confusing.

All of this should mean better protection of the child’s welfare and greater emphasis on the process before the child is conceived, allowing for more meaningful scrutiny of surrogacy arrangements. As surrogacy becomes more commonplace in the years ahead, this can only be a good thing.

The contents of this article are not intended as legal advice but a general guide. For specific advice about your own situation, legal advice should always be obtained.

If you would like to discuss surrogacy further, please contact Amanda for an initial, no-obligation chat – call 01382 219004 or 07596 322 296, or email amanda@amandawilsonfamilylaw.co.uk. You may also wish to contact Surrogacy UK and Childlessness Overcome Through Surrogacy (COTS).

Surrogacy UK: surrogacyuk.org

COTS: surrogacy.org.uk