Insight
I appeared on STV’s Scotland Tonight on 3 February 2022 to discuss the current law applying to surrogacy in Scotland, and some of the perceived difficulties that it gives rise to in practice.
Surrogacy is a way for individuals and couples who cannot conceive or carry a child on their own to have a baby and create their family. There are, however, some important legal considerations to bear in mind when entering into a surrogacy arrangement. One of the most notable perceived issues with the law as it stands is that at birth, the surrogate will be treated in law as the legal mother of the child, and, if she is married or in a civil partnership, and it cannot be shown that her spouse or partner did not consent to her medical treatment to become pregnant, her spouse or partner will be considered the father or second legal parent, even where there is no genetic link between those individuals and the child. In every case, in order to transfer legal parentage from the surrogate, and her spouse or partner if applicable, to the intended parent or parents, the intended parent or parents have to go through a legal process at court. That involves them applying to the court for a Parental Order. The granting of that order is not automatic, and the court will consider each case according to its particular circumstances. The surrogate’s consent to the transfer of legal parenthood is required to allow that process to proceed. Her consent is ineffective, for legal purposes, however, if given any earlier than six weeks after the baby’s birth. Surrogacy agreements, in which such consent may be expressed, are not legally binding or enforceable. The risk is that the surrogate withholds her consent regardless of having expressed otherwise before the baby was born, or shortly after birth. Although this may be rare in practice, it’s certainly not unheard of, and the possibility of it leaves the intended parents in a precarious position until the legal process is complete. Perhaps even rarer still, the intended parents could also change their minds about taking on legal responsibility for the child and leave the surrogate quite literally holding the baby.
In most cases, none of the parties involved will have a change of heart, and the process of transferring legal parenthood to the intended parents will proceed without difficulty. However, the process of applying for a parental order can only be instigated after the birth and can take several months to complete, and so there is a period of time whilst that procedure makes its way through the court during which the surrogate, and potentially her spouse or partner, are legally responsible for the child, a child they may not be related to whatsoever and who is not in their care. The child, meanwhile, is living in the care of intended parents who have no legal rights or responsibilities in respect of that child. That is, in the vast majority of cases, the opposite of what all of the parties concerned actually want and could pose difficulties for the intended parents in making certain decisions for the child, such as consenting to medical treatment or taking the child abroad for instance, during that period.
There is currently a joint consultation, launched by the Scottish Law Commission and the Law Commission of England and Wales, which began in 2019, to review whether surrogacy law requires to be changed to bring it more into line with modern views on surrogacy and address some of the issues with the current law as it stands. Among the proposed reforms in the consultation paper is a new pathway to legal parentage which would allow the intended parents to be legal parents from the child’s birth, with the surrogate having a right to object for a short period after birth. If adopted, this reform would undoubtedly bring the law more into alignment with what the participants in surrogacy arrangements want and intend from the outset in the vast majority of cases.
Also envisaged is the establishment of a regulator to oversee surrogacy arrangements and monitor standards. This could see the introduction of a list of stricter preconception requirements which must be met prior to entering a surrogacy arrangement, including such conditions as attending medical screenings and seeking independent legal advice which would assist in keeping standards high.
The consultation period on reform closed for responses in October 2019. An update on the outcome of that process is expected in autumn 2022.
You can catch up on the discussion on Scotland Tonight here:
And read about the episode and the issues in discussion here:
If you are considering surrogacy as a route to creating your family, get in touch with me or one of my colleagues in Harper Macleod’s Family law team.