Surrogacy is becoming an increasingly recognised route to parenthood for many families in Scotland.

Legal position on surrogacy in Scotland - summary

My colleague, Susie Mountain, previously summarised the law in Scotland concerning surrogacy and possible law reform. We have also published a guide to fertility, assisted reproduction and surrogacy.

In short, surrogacy is legal in Scotland, provided that it does not involve a commercial arrangement. As the law presently stands, a child conceived through surrogacy (whether through traditional surrogacy, where the surrogate mother's eggs are used, or through gestational surrogacy, where there is no genetic link between the surrogate and child) is legally the child of the surrogate mother at birth. The surrogate's spouse or civil partner (if she has one) may be the child's legal father or other parent. The intended parents, therefore, usually have no legal rights in respect of the child. As a consequence of this, it is important that intended parents apply for a Parental Order to have parental responsibilities and rights transferred from the surrogate (and any spouse or civil partner) to them. This can presently only be granted if the surrogate (and her spouse or civil partner) agrees to such an order. We have published a route map which provides a summary of the process.

The legal requirements for a Parental Order

The Human Fertilisation and Embryology Act 2008 provides, amongst other things, that an intended parent, or intended parents, must apply for a Parental Order between six weeks and six months following the child's birth and that at the time of the application and at the time an order is granted the child must be living with the applicant(s). For joint applications, the intended parents ought to be in an enduring family relationship. How is this to be interpreted when an application is lodged after the child reaches six months and how are these provisions to be interpreted in respect of separated couples? These issues were considered in the Scottish case of AB and XY petitioners, for which the written judgment was published last week.

Recent Scottish case considering when the rules aren't followed: AB v XY

AB and XY petitioners concerns non-identical twins, G and H, who were born through traditional surrogacy to the intended mother (AB's) sister and using the intended father (XY's) sperm. Issues arose in respect of applications lodged for parental orders. Firstly, the applications were lodged twenty-one months after the birth of the children, as opposed to the maximum period of six months prescribed by Section 54(3) of the 2008 Act. Further, the intended parents had separated and were living apart at the time that the applications were raised.

When communicating her decision, Lady Carmichael emphasised the overriding duty of the court to have regard to the need to safeguard and promote the welfare of the child throughout their life as the paramount consideration when making decisions. The court also had regard to English case law authority, including Re X (A Child) (Parental Order: Time Limit) and subsequent cases, and considered article 8 of the European Convention on Human Rights (the right to respect for family life, which has been incorporated into our domestic law).

Lady Carmichael concluded that it could not have been the intention of Parliament that a failure to lodge an application within six months of the child's birth would bar an application. Further, she concluded that a broad and flexible construction of the provisions regarding the child residing in the home of the applicants was necessary to achieve the intended purpose of the legislation, which was to ensure that intended parents could secure legal recognition of their relationship with their children born through surrogacy.

Lady Carmichael emphasised that in the case of AB and XY petitioners, the surrogate had never viewed the children as her own. Further, although separated, AB and XY considered themselves as coparenting, which enabled the court to conclude that they could be considered partners in an enduring family relationship. The court was satisfied that the children had their homes with the petitioners, albeit AB and XY no longer live together. Lady Carmichael also explained that the orders sought would simply reflect the reality of the children's lives and family relationships. A factor which seems to have been considered by the court in this case was that the intended parents and surrogate did not have the benefit of legal advice before they proceeded with surrogacy and the children were conceived and born during the coronavirus pandemic, which impeded AB's ability to seek legal advice. For these reasons, the court granted the applications for Parental Orders in respect of G and H.

Importance of legal advice for surrogates and intended parents

It is clear from the case of AB and XY petitioners that surrogacy law can be complicated and a lack of knowledge of the law can have significant consequences. It is important that intended parents and surrogates obtain independent legal advice before deciding to proceed with a surrogacy arrangement. At Brodies LLP, we have a number of solicitors across Scotland who can provide expert legal advice on surrogacy. Please see our surrogacy page for more information.

Contributor

Garry Sturrock

Senior Associate