Behind the scenes: BBC's the surrogates

The BBC recently aired an illuminating documentary on the reality of five women’s choice to carry a baby for someone else. Following both the surrogates’ and the intended parents’ journeys through the world of matching, pregnancy, and finally handing over the baby, the emotionally-charged and often heart-warming watch threw a light on the highs and lows of this method of creating or growing a family. It may be a sign of the fast pace of the growing numbers of people in the UK exploring alternative ways to have children that Channel 4 also recently produced ‘Strangers Making Babies’ which documented a matching process of individuals to become ‘co-parents’.  At Harper Macleod, we have seen a marked increase in the number of new clients getting in touch with our solicitors to seek advice on this area of law, together with returning intended parent clients who are taking a second trip down the surrogacy route to add to their families.

Whilst statistics can be difficult to come by due to the fact that many people throughout the country may choose to have ‘DIY’ surrogacy arrangements and not take the final legal step of transferring legal parenthood, Surrogacy UK indicates that in the decade from 2009 until 2019, children born into surrogacy arrangements followed by the appropriate legal process increased more than four fold. As societal norms change, and medical procedures evolve, the number of individuals choosing to proceed with alternative methods of becoming a parent will no doubt continue to pick up pace.

If you are considering becoming a surrogate or looking into your options of becoming a parent via surrogacy, it is important that you are fully informed on the legal issues which can arise from that, and the relevant processes required to secure your rights in law. Our Family law team, goes behind the scenes to set out what you need to know from a legal perspective before embarking on your surrogacy journey.

What is Surrogacy?

The legal definition of a surrogacy arrangement is one which entails a “woman who carries a child in pursuance of an arrangement, and made with a view to any child carried in pursuance of it being handed over to, and parental responsibility being met (so far as practicable) by another person or persons”.

Surrogacy is legal in Scotland, and indeed throughout the UK, but there are many, and not entirely straightforward, legal issues which prospective surrogates and intended parents should consider before proceeding with such an arrangement.

Who are considered the parents of the baby when he or she arrives?

The intended parents do not automatically become the legal parents of the child after the birth. In the UK, legal parents of a child born through a surrogacy arrangement are the surrogate mother and her spouse or civil partner unless his or her consent to the artificial insemination or placing in the mother of the embryo or eggs was not given. If the surrogate mother is not married or in a civil partnership, or her spouse or civil partner has not consented to the surrogacy, then the genetic father will ordinarily be the legal father. In other cases, a non-genetic father or second legal parent may become a legal parent, provided only that the stringent agreed fatherhood or agreed female parenthood conditions of the relevant legislation are complied with. In all other circumstances, the intended parent(s) will require to ask the court to grant an order conferring on them a legal status of parent.

The process from Intended Parent to Legal Parent

In order to legal transfer parentage, the intended parent(s) must lodge an application for a Parental Order at court within six months of the date of the child’s birth. The child must already be living with the applicants, and be genetically related to one of the applicants. The surrogate mother (and her husband or civil partner if he or she consented to the insemination/implanting) must consent to the parental order being granted within a prescribed window of time. The granting of a parental order is not automatic. The relevant legislation must be adhered to and the court will consider whether or not the granting of the order is appropriate in the circumstances of the case.

Are surrogates allowed to be paid?

In the UK, surrogates are not permitted to be paid except in respect of reasonable expenses. Intended parents should therefore ensure that any payment or benefit conferred on a surrogate is modest and reasonable. Examples of reasonable expenses may be the cost of maternity clothes, any loss of earnings due to pregnancy-related sickness absence, and travel expenses to medical appointments, but of course this list is not exhaustive.

What are the rules around consent?

The consent of the surrogate mother (and her husband/civil partner if applicable) is central to the parental order being granted. In Scotland, that consent must be committed to prescribed forms. The consent of the surrogate mother is only effective if given by her more than six weeks after the child’s birth. Although any previous notices of consent will be considered by the court, they are likely to limit the weight they attach to that consent. In effect, the surrogate mother can change her mind about giving consent to the handing over of the child at any point. A surrogacy agreement is unenforceable if the surrogate mother does indeed change her mind. The intended parents are therefore in a precarious position throughout the process until it is complete.

International Surrogacy Arrangements

Parties who travel abroad to countries where there are more willing surrogate mothers may often place too much reliance on the advice given to them by lawyers and clinics in those other countries, to the effect that they do not have to do anything on return to the UK once their legal parentage is established in the foreign jurisdiction. This is not the case. The transfer of legal parentage must be established in accordance with Scots law.

Single Parents

The law was recently changed and applications for a parental order can now be made by single individuals

Get in touch with our family team

At Harper Macleod, our Family Law solicitors are experienced in assisting clients with all aspects of child law. We act regularly for both surrogates and intended parents, and are experienced in guiding individuals and couples through this complex area of law.

If you would like to find out more and how we could help, please get in touch on 0141 673 0143.