Surrogacy in the UK is on an upward trajectory, which gives rise to more questions regarding the complex legal implications that surrogacy may entail. Put simply, surrogacy is when a woman carries a child for someone else who wants to be a parent but is unable to become so naturally, so surrogacy can be the only way for people to have children with a genetic link to them. In the UK, it is becoming more common, and it’s thought that the number of babies born via surrogacy could be 10 times higher than it was a decade ago.
Surrogacy is legal in Scotland, and indeed throughout the UK, but there are many, and not entirely straightforward, legal issues which a prospective surrogate and prospective intended parents should consider before proceeding with such an arrangement.
The surrogate is considered the child’s legal mother until a court order otherwise. She will hold all parental rights and responsibilities in relation to the child. If she is married or in a civil partnership, her spouse will be considered the father or other parent regardless of any biological connection to the baby.
The intended parents are not legally the child’s parents until a Parental or Adoption Order is made. This means that, as the child’s legal mother, the surrogate cannot be forced to hand the child over unless an order of court is granted. Even where she willingly gives the child to the intended parents, they will still need to apply to the courts and go through the legal process for obtaining such an order. Therefore, in theory, the surrogate mother or the intended parents may change their mind at any point of the process, even if a surrogacy agreement is in place.
So how is parentage transferred? The intended parent(s) must lodge an application for a Parental Order at court, and the eligibility requirements include:
- The application should be made within six months of the date of the child’s birth.
- The child must already be living with the applicants.
- The applicants must be domiciled within the UK.
- The child must 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.
- No payment will have been given or received in relation to the surrogacy, except for reasonable expenses and unless authorised by the court.
The granting of a parental order is not automatic. The relevant legislation must be adhered to, and the court will consider whether the granting of the order is appropriate in the circumstances of the case.
If you are considering surrogacy then it is crucial that you get legal advice from the outset, as the legalities of surrogacy are extremely complex. Please contact us on 0141 404 1091 for any queries you may have surrounding this topic.