Surrogacy in Scotland

With rumour-mills rife, since the last series of Keeping up with the Kardashians, it has now been unofficially confirmed that Kim Kardashian and Kanye West are having their third child, this time with the help of a surrogate.

Surrogacy and assisted reproduction appears to be on the rise, with celebrity couples such as Sarah Jessica Parker, Matthew Broderick, Nicole Kidman and Keith Urban raising the profile of surrogacy, the concept appears to be coming less stigmatised and more acceptable in modern society.

How does the law treat surrogacy in Scotland?

The law in relation to surrogacy is governed by the Human Fertilisation & Embryology Acts of 1990 and 2008. The Surrogacy Arrangements Act of 1995 also deals with prohibiting commercial surrogacy arrangements.

Due to the high profile nature of celebrity cases, many people assume they know the law in relation to surrogacy in Scotland. However, many people fail to realise that prospective parents are not protected by any written agreement they enter into with a potential surrogate. The Surrogacy Arrangement Act 1995 provides that “No surrogacy arrangement is enforceable by or against any persons making it”. This means that any contract prospective parents and a surrogate enter into, whereby the surrogate is to carry a child with a view to handing the baby over to the prospective parents following birth, is not enforceable in Scotland. The case law that has followed since this legislation has demonstrated that courts will enforce the law strictly, despite the potentially devastating outcome for prospective parents.

It is also a little known fact that in terms of the legislation, the “mother” of any child born as a result of surrogacy, is defined as the woman who carried the child and gave birth to that child. This is irrespective of whether or not that mother has any biological link to the child. Where that mother is married at the time of treatment, in terms of Scots Law, her husband is automatically deemed to be the “father”, unless it can be shown that the man did not freely and expressly consent to surrogacy.

Parental Orders
For prospective parents, who are not automatically classed as mother or father of the child born via surrogacy, they require a Parental Order to formalise their status as parents.

Firstly, the applicants must be either married, Civil partners or two persons living as partners in an “enduring family relationship”.

• In terms of the legislation the child must have been carried by a woman who is not one of the applicants and the child must biologically have been created using DNA from one of the prospective parents making the application.

• The application must be made within six months of the date on which the child is born and at the time of the application the child must be domiciled in the United Kingdom.

• The applicants must both be over the age of eighteen and importantly, the Court must be satisfied that the surrogate who carried the child and any other parent who is not one of the applicants, have freely and fully understood and agreed to the Order being made without conditions being attached to that consent. A Court will only make an exception to this consent if that individual cannot be found or cannot give agreement. It is also notable that the consent of the surrogate who gave birth to the child is ineffective if given less than six weeks after the birth.

• Surprisingly to many, the Court must also be satisfied that no money has been given to anyone in consideration of the surrogacy arrangement and in particular the handing over of the child. It is acceptable for the surrogate to receive payment which represents costs incurred, as long as a Court is satisfied that the payments are made in good faith and do not indicate any abuse, immorality or undue influence / pressure being placed on the surrogate mother to hand over the child.

If you require any advice in relation to obtaining Parental Orders in respect of a child born from surrogacy in Scotland, Macleod & MacCallum’s Family Law Team would be happy to provide you with detailed legal advice specific to your situation. Please don’t hesitate to get in touch on 01463 239393, or by email at family@macandmac.co.uk.

September 12, 2017