Surrogacy and the Law

As an undergraduate I studied Forensic Medicine. One of the topics we covered was the legal issues surrounding surrogacy and so it was with interest that I read a recent BBC report which pointed out that the number of registered surrogacies in the UK has risen from just 83 in 2010 to a projected figure of more than 200 this year.  Surrogacy is legal in Scotland but subject to many complexities.

A surrogate mother is a woman who carries a child by virtue of an arrangement to do so. Common scenarios might be a married couple encountering difficulties in conceiving or giving birth naturally or a family member agreeing to carry a baby for her sister who has had a hysterectomy. There are two types of surrogacy, partial and full. Partial surrogacy involves the surrogate mother’s egg being fertilized with the intended father’s sperm. In full surrogacy there is no genetic link between the surrogate mother and child.

A surrogacy agreement will be entered into between the parties wanting to be parents and the surrogate mother. The arrangement must be made before the mother begins to carry the child and is formulated with a view to handing over the child to the prospective parents after the child is born. It is illegal to advertise for a surrogate or for a surrogate to advertise her services. No money or other benefit, other than reasonable expenses, must be given or received by either party.

Legally, however, surrogacy arrangements are unenforceable. Ultimately the surrogate mother has the legal right to keep the child when it is born and if the intended parents decide they do not want the child then they can walk away even if a contract has been signed. Few could have missed the story of baby Gammy, born to a Thai surrogate. The baby had Down’s syndrome and was allegedly left behind by the Australian “commissioning couple”. There is nothing to prevent the same situation happening in Scotland.

A recent English case highlighted further difficulties. A heterosexual couple wanted a child but the female of the couple had had a hysterectomy so a friend agreed to act as the surrogate using the male’s sperm and her own egg. A baby girl was born, handed over to the couple but three months later the couple split up. The woman left the home and took the baby with her.  But the surrogate mother was legally the child’s mother and the man in the couple was legally the child’s father. The woman of the couple had no legal relationship with the child whatsoever. This would equally apply in Scotland: the woman of the couple would have no parental rights and responsibilities, with no right to have the child living with her whereas the surrogate mother would be responsible for regulating the child’s residence and be obligated to financially support the child.

Clearly legal advice is crucial to ensure the relationship between the child and its intended parents is given the correct legal standing .Parenthood can only be transferred to the intended parents through a court order. An application for a parental order must be made within the first 6 months of a child’s life. In Scotland application is made to the Court of Session or the Sheriff Court in the place the child resides. The applicants must be husband and wife, civil partners of each other or two people who are living together in “an enduring family relationship.” The child must be living with the applicants at both the time of the application and the time of the making of the order. One of the applicants must be domiciled in the UK. The court must be satisfied that the surrogate mother or anyone else who is a parent of the child but not one of the applicants freely consents to the making of the order.