Surrogacy, put simply, is the concept of a woman bearing a child for another person. This process is legal in Scotland however with it entails strict parameters. Fundamentally, surrogacy arrangements must remain altruistic. This means any surrogacy contract entered into remains unenforceable, and payment is only permitted to cover ‘reasonable expenses’ of the pregnancy. This process albeit sounds simple, however, is anything but.
The underlying issue surrounding surrogacy arrangements is that the law remains outdated with legislation dating back to 1985 and 2008. Unsurprisingly, this complex yet unregulated area of law creates significant problems for prospective families.
When a surrogate child is born, regardless of genetics, the surrogate mother will legally be the mother of the child. Therefore, the surrogate mother retains parental rights and responsibilities of the child until these are, essentially, handed over. The ‘Intended Parent(s)’ must apply to the Court for a Parental Order within 6 months of the birth of the child.
The caveat to this is that the ‘Intended Parent(s)’ must have the consent of the Surrogate. Without this consent, they can sometimes be left with no choice but to adopt the child. BBC’s programme ‘the Nest’ which aired in 2020, depicted the key issues of a hugely unregulated sector, and shone a light on what happens when things go wrong.
It is no secret that the law requires reform. This issue highlighted above narrates only one of the numerous issues which arise as a result of this outdated area of law. With the Scottish Law Commission currently reviewing the legislation surrounding Surrogacy Law, it will be interesting to see the outcome of the much anticipated bill, and what this means for families moving forward.
With more families choosing to consider the option of surrogacy, for many reasons, it is imperative to be guided through this process with the help of a qualified solicitor, due to the legal complexities surrounding surrogacy arrangements.