As discussed in my recent article in The Scotsman, Surrogacy is still relatively rare in Scotland and the UK, however lawyers who specialise in this area such as my team at Harper Macleod are seeing a steady increase in enquiries from prospective surrogates and intended parents who are taking this route to family creation.

A raft of cases which have been heard in the UK courts this year, however, in relation to surrogacy and assisted conception, highlight a continuing gap in knowledge of this area of law, which has resulted in surrogates, intended parents, and the children involved being left in very precarious positions.

In Re X v Z (Parental Order: Adult), Mr and Mrs X entered into a surrogacy arrangement in the US in 1998, with their surrogate, Mrs Z. Their son, Y, was born in California. Orders were made under US law providing that Y was legally the child of Mr and Mrs X. Mr and Mrs X brought Y back to their home in the UK and got on with life. To Mr and Mrs X’s “major shock”, Mrs Z contacted them in September 2021 alerting them to their need to obtain a Parental Order in the UK if they were to be treated as Y’s parents here. In the absence of that, Mrs Z and her husband remained, under UK law, Y’s legal parents. By this time, Y was in his twenties. Mr and Mrs X applied to the court for a Parental Order.

In the landmark ruling, Mrs Justice Theis granted the Parental Order, despite the age of the ‘child’, the fact that he was no longer living at home with his parents, and the application being years out of time, however, the case was no doubt unwelcome stress for all involved. If Mrs Z had not been in touch, Y would have remained her legal child.  

A similar situation arose in X, Y and Z (Children: Parental Orders: Time Limit), where a same-sex married couple had twins via surrogacy in 2017, and subsequently a third child via surrogate in 2019, all in the US. They went through the legal processes in the US to be recognised as legal parents and returned with the children to Denmark. The twins were registered as Danish citizens based on one of the fathers’ legal parentage, however, when they later sought to register the third child as a Danish citizen, they were refused and told that the twins had been registered as such in error. Only the biological father (who was not a Danish citizen) and the surrogate were recognised in Denmark as legal parents. Danish authorities threatened to deport the children as they had no residence status in Denmark, which underlines the seriousness of the issues faced by intended parents and children involved in international surrogacy. The family eventually relocated to England and applied for and obtained Parental Orders in the UK.

Osborne & Arnold v Cambridgeshire County Council is a case where the registrar got things wrong. This case involved a same-sex female couple who had a child via treatment at a licenced UK fertility clinic using an anonymous donor. The couple satisfied the legislative requirements for both to be treated as legal parents, however, the registrar refused to register them as such, allegedly advising them that the partner who had not carried the baby (Ms Osborne) would require to adopt the child. This is what she did. A troubling factor here is that no one, from the local authority involved in the adoption process, to the courts, recognised that there was no need for adoption because Ms Osborne was already the legal parent. It was only when they went to register their second child that they were told they were given the wrong information the first time around. The couple ended up having to go through complex court proceedings to undo the erroneous registration and adoption and put matters right in terms of Ms Osborne’s parentage.

Lastly, there is the distressing case of James MacDougall, who fathered multiple children after advertising himself as a sperm donor on social media. When entering into donor arrangements, MacDougall failed to be upfront and transparent about an incurable genetic condition he has, called fragile-X, which prevented him from acting as a donor through a regulated clinic. At least one of the children he fathered was showing signs of developmental issues at the time the case was heard. MacDougall sought contact with some of the children he fathered, and whilst he was unsuccessful, this case is a stark and very sad example of the risks of unregulated arrangements involving online matching between sperm donors and women desperate to conceive. It highlights the risks not only in terms of health but also in relation to the rights donors have to pursue contact with children born of these private, unregulated arrangements.

I think what can be seen from these cases is how prevalent gaps in knowledge still are in relation to assisted conception, surrogacy and parental orders today. We see it in the Danish and adult parental order cases, where the intended parents were completely unaware that the US transfers of parentage were not recognised in their home countries. It can be seen in the MacDougall case, where desperation, lack of finance, or simply lack of knowledge about the options available and the risks posed by private donation arrangements led to distressing consequences. And we see it in Osborne, where a couple were let down by professionals every step of the way after their first child was born.

Surrogacy and assisted conception, whilst becoming much more common as societal norms evolve and medical advancements are made, are still relatively rare in Scotland and the UK, and it is important for everyone involved to ensure that they take legal advice from experts in this area of law before embarking on these routes to family creation.