Kim Kardashian, Elton John, Sarah Jessica Parker, Nicole Kidman, Tom Ford are to name but a few of the celebrities who have used a surrogate to have a child.
Surrogacy is becoming increasingly common in the UK. It is not possible to accurately calculate the number of babies born via surrogacy in the UK in any particular year due to the informal nature of some surrogacy arrangements.
A question that we sometimes get asked as solicitors working in family law – is surrogacy legal in Scotland? The answer, in short, is “yes, but not on a commercial basis”. In contrast to some countries where surrogates can profit in monetary terms, in Scotland surrogates may only receive “reasonable expenses”.
Many of you will have read stories in the press over the years about some of the issues with surrogacy in the UK and the outdated laws surrounding it. In Scotland, one of the main concerns is that parenthood can only be transferred to the intended parents by an order of the court. Until such an order is granted, the surrogate mother is named as the mother on the child’s birth certificate and she will have parental rights and responsibilities in relation to the child. This can cause various difficulties. Those parental rights and responsibilities only fall upon the necessary order being made by a court.
Having regard to the above, and other significant concerns, lobbyists have been calling for the law on surrogacy to be reformed for some time.
The lobbying has been worthwhile as the Scottish Law Commission and the Law Commission of England and Wales have commenced a joint three year review of the laws on surrogacy, with a view to making recommendations regarding law reform. They have already acknowledged that there are significant problems with the laws on surrogacy and the process generally. It will be interesting to see the outcome of the review, so roll on 2021 to see what the recommendations are to bring surrogacy law into the 21st Century…
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