Donna McKay

Legal Director

Professor Abha Maheshwari MD

Person responsible, Aberdeen Fertility Centre

Episode overview:

In this second episode in the series we ask "What do I do if…I want to start my family by surrogacy?"

Brodies' child and family law specialist, Donna McKay and Professor Abha Maheshwari MD, person responsible, of the Aberdeen Fertility Centre discuss the practical issues couples or individuals face throughout the surrogacy or IVF process.

From the current law and trends on surrogacy in Scotland and surrogacy reform, to drawing on own experiences of mothering a child through IVF, Donna and Abha walk prospective parents through the steps they need to follow, common complications as well as how fertility clinics can provide emotional support through the surrogacy or IVF process.

For more information such as the current position of fertility treatment in Scotland to the legal issues surrounding sperm donation, visit our surrogacy page here.

You can also find us on Apple Podcasts, Spotify or wherever you usually listen to your podcasts by searching for "Podcasts by Brodies".

David Lee, Podcast host

David Lee hosts the 'What do I do if...?' podcast. David is an experienced journalist, writer and broadcaster and he is also the host of 'The Case Files' podcast by Brodies.

David Lee, Podcast host]


00:00:05 David Lee, Host

Hello, my name is David Lee and welcome to Podcasts by Brodies. Experts from Brodies operate in many areas of the law every day and their clients have a very wide range of questions before, during and after their time working with the lawyers, whether they're navigating new or more familiar situations together.

In each episode of our series, “what do I do if...?” experts from various fields explain how they help clients when faced with some of those different and often difficult scenarios.

The latest series of episodes features Brodies personal and family team, and today we're looking at the question “what do I do if...I want to start my family by surrogacy?

To discuss this complex topic I'm joined by Donna McKay, a senior associate and child and family law specialist with Brodies and by Professor Abha Maheshwari from Aberdeen Fertility Centre.

Welcome to you both and Donna let's start with you.

A simple question, maybe not as simple as it sounds - when we talk about surrogacy what exactly do we mean?

00:01:10 Donna McKay, Senior Associate, Brodies LLP

The easiest way to describe it is that a surrogacy arrangement involves a woman carrying a child on behalf of a couple or an individual, with the intention that the child will be raised by the couple or the individual who've commissioned the surrogacy. So the intended parents, and not by the surrogate mother herself.

00:01:29 David Lee, Host

How common is it, Donna? Is surrogacy on the increase in Scotland and what do we know about the figures and if it is increasing wise there?

00:01:38 Donna McKay, Senior Associate, Brodies LLP

It absolutely is increasing without a doubt.

Back in 2011 there were only 121 parental orders made but when we compare that to the latest figures I could find which were 2018, there were 368 in that year. So more than double - trebled, in fact.

As I understand it, there's a lot of reasons for the increase.

Sadly, infertility in the general population is increasing and oftentimes many people just cannot conceive children using other IVF models and therefore choose to use surrogacy instead.

There's also an increase, of course, in same sex couples as society has changed over the years and the stigma associated with being in a same-sex couple has diminished. And of course, same sex couples would be unable to conceive naturally, and so would have to look at other avenues to enable them to have children.

Age, sadly, is also another thing that impacts on fertility – certainly a woman’s fertility - and their ability to conceive and to carry the child.

And by the age of 40, the likelihood of a woman getting pregnant drops significantly, although it still does happen. But people are now settling down much later in life and financial worries can be a reason that people put off having children or just careers or other matters taking priority.

Perhaps the most recent reason that surrogacy may be on the increase, unfortunately, has been due to the COVID-19 lockdowns.

People haven't been able to seek medical advice for certain conditions as quickly as it otherwise might have been, and that has sadly meant that some people have suffered from cancers or other illnesses, which in turn have affected their fertility, and which, again has seen more people turn to alternative methods to starting there.

00:03:38 David Lee, Host

And Abha, if I can come to you. Can you just tell us a little about the history of Aberdeen Fertility Centre and its work in assisting people looking to start families?

00:03:50 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

So Aberdeen Fertility Centre was set up way back by Professor Templeton in 1995, so a long history of assisting people who are having difficulty in conceiving.

We have probably created over 5000 babies through various treatments, both IVF and non IVF, those who require donor gametes, those who require donor eggs, sperm or even surrogacy. So all sorts of treatment is offered here - right from the consultation to investigations as well as the treatment, whatever is needed for fertility.

So we are the tertiary Centre for the whole North East of Scotland and we'd get direct referrals right now from even Highlands and support Orkney and Shetland clinics as well, along with obviously the Grampian and Moray area.

00:04:49 David Lee, Host

OK, thank you, a very wide geographical area there and you touch there on surrogacy as one of a range of areas that you work in and how common is surrogacy in the in the work that the centre does?

And what would you say are the broad reasons that people might come to you looking at surrogacy as an option?

00:05:12 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

So surrogacy used to be one of the rare things. At one point we were thinking we don't need all four big centres in Scotland for surrogacy, we might just do it at one place. But over the last two to three years numbers have suddenly increased because those who are requiring surrogacy have increased.

The reasons for doing surrogacy are if you do not have your own womb or medically you can't bear a pregnancy safely to take it to term, these are the main indications. Those indications haven't changed, but what is coming now is if you have are a single man or same sex male couple then you will require a surrogate.

We are also doing a lot of people who are undergoing cancer treatment. They are having fertility preservation, which means that they're storing either eggs or embryos for them.

And if their cancer treatment needs to continue for longer which prevents them from having pregnancy, or for some reason they're needing to have their womb removed, it's not safe for them to have pregnancy, because pregnancy obviously increases the hormones and other things, they are the ones who are requiring surrogacy as well.

We have also now got new Human Fertilisation & Embryology Authority (HFEA) consent forms, which means that any women and men who are signing up for IVF treatments, the female partner can leave their embryos or eggs in case anything happens to her (either she becomes mentally incapacitated or she dies) for the male partner to use them in a surrogacy arrangement. So those are coming new and they will kind of get into effect later.

So there are multiple indications for surrogacy now, and even within our Centre we have seen increased number significantly suddenly in last two years.

00:07:10 David Lee, Host

And why is that Abha? Why have those numbers increased, do you think?

00:07:15 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

It’s just that there is awareness that surrogacy can be done, and because the whole landscape of fertility is changing.

We are not just dealing with a male and a female, we are treating same sex male, female same-sex males, single women, single men - so all sorts of permutation combinations are being done.

We are also doing fertility preservation for trans people who are undergoing transition but before that they undergo fertility preservation. So again, when they come to use it, depending upon what relationship they have, how we are going to use their gametes for creating families? They will require surrogacy as well. So the landscape of fertility is changing.

00:08:04 David Lee, Host

OK, and back to you Donna. Before we talk about the legal aspects of surrogacy in more detail, can you tell us about your own experience?

You have had a similar experience of mothering a child through IVF, I understand, how do you think that helps you to kind of empathize with clients who are looking at the possibility of surrogacy?

00:08:26 Donna McKay, Senior Associate, Brodies LLP

Yes, that's correct.

My son was born in 2014, following IVF treatment at the clinic here in Aberdeen.

If I'm honest, I thought that beforehand it would be the physical side of the process that would be the most demanding.

I can clearly state that I was absolutely wrong about that! Despite having a needle phobia, I was soon cured of that with the support of my husband, I got to grips with the act of having to inject myself sometimes several times a day.

The emotional side though, was a whole different ball game.

I recall at the outset having a feeling of desperation when it came to being a mum. It was the priority in my life. I would have done absolutely anything to make that a possibility, and that's certainly something that I can relate to when clients come and speak to me about their own situations.

My journey involved me harvesting 6 viable embryos, 2 of which were implanted, but I did not have a positive pregnancy test with those embryos. The remaining four were frozen. Two of those didn't survive being thawed. The last two were used and my son was born as a result of that.

The whole thing, quite honestly, was a huge emotional rollercoaster. I felt overwhelmed, anxious, and of course, the direction that you get from the clinic is to try and keep yourself calm to give yourself the best chance of success. I'm sure that the hormones didn't really help, but I remember it being a hugely emotional time.

00:10:06 David Lee, Host

To move from Donna the mum to Donna the lawyer and talk a bit more about the legal aspects of surrogacy. I think the first question you've probably summed up quite well in what you've just said about your own story...

I'm guessing that surrogacy is a legal and an emotional minefield for many of the people who go into it?

00:10:28 Donna McKay, Senior Associate, Brodies LLP

Yes, and that would be absolutely fair to say.

I suppose that the most obvious thing is that surrogacy involves more than just the person or the couple who are intending to have the child, and there's the obvious third party involved.

That in itself brings a whole host of legal complexities to the table that have to be resolved. Which is why it's incredibly important that those who are considering entering into a surrogacy arrangement come and get that legal advice as early as possible in the process.

00:11:07 David Lee, Host

OK, so if you are considering surrogacy Donna, what are those early considerations?

What are the first questions that you need to answer and the considerations you need to make?

00:11:16 Donna McKay, Senior Associate, Brodies LLP

Well, the first thing that anyone considering surrogacy should consider is where the surrogacy arrangement is going to take place.

Because of course, surrogacy arrangements can be entered into here in Scotland or elsewhere in the UK, but they can also be entered into overseas and depending on where you enter into the arrangement, there will be all sorts of different legal quandaries that arise from that.

00:11:44 David Lee, Host

And what about, as you say, Donna, you're talking about the people who want to have a surrogate child, and the surrogate themselves. Do they need to have independent advice?

They presumably need to be advised independently and separately?

00:12:02 Donna McKay, Senior Associate, Brodies LLP

Yes, that's absolutely right.

Whilst Brodies would be more than happy to advise either the intended parent or the surrogate, we certainly can't advise both in relation to the same surrogacy arrangement as that would present us with a conflict of interest.

So each party should go and get independent legal advice.

00:12:23 David Lee, Host

OK, and what are their legal rights when somebody goes into an arrangement like this?

What are the legal rights of the surrogate mother? And what about the intended parents as well?

00:12:33 Donna McKay, Senior Associate, Brodies LLP

When the child is first born the surrogate mother, and indeed any spouse or civil partner of the surrogate mother, have parental rights and responsibilities in respect of that child. They are the only people who have parental rights and responsibilities in respect of that child. The intended parents have no rights at all in relation to the baby.

To obtain rights, they have to go through a legal process, which is something that we most certainly can help with.

So initially, when the baby is born, it is the surrogate parents who make all the decisions about any immediate health care that the child might need, about the child’s place of residence - basically, anything that you can think of that that child needs a decision made about it falls to the surrogate.

If she has a spouse or civil partnership, it also falls to them to make those decisions.

So one of the first things that the intended parents really need to do is have in place a lawyer ready to assist them to apply for the right in respect of that child.

And we call that a parental order.

It's a court-based process and the intended parents need to apply to the court for the parental order.

What the parental order does is it strips the surrogate and, if applicable, her spouse or civil partnership of parental rights and instead gives those rights to the intended parents, but it's important to note that the surrogate and any spouse or civil partner needs to consent to that order being granted, so they're very much still involved in the process.

Without their consent then the court can't grant the parental order. So it's really important at an early stage too, to get all of these things in a row so that everyone is clear about what will have to happen at once the child is born.

The timing of all that's really important as well, because the intended parents can't apply to the court for the parental order until a period of six weeks has passed since the child was born, but the application must be made before the child is 6 months old. So you only have a window of time to act in, so it's important that the timing of all this is correct.

00:14:50 David Lee, Host

Are things normally sorted out within that period, or do complications arise?

00:14:58 Donna McKay, Senior Associate, Brodies LLP

The norm is that they're sorted out within that window, and because if everyone is on board with this, I.e. the surrogate is consenting to the parental order being granted, then there shouldn't be any complications.

It really is just a case of making the relevant application to the court forwarding the correct information to the Court, and the rest just follows.

There was a very recent case, however, where there was a petition made to the Supreme Court in relation to exactly the scenario you described where a child was born by way of a surrogacy arrangement in the US 20 years ago. All of the paperwork was correctly filed in the United States, all of their processes were gone through and the couple then returned to the UK with the child.

The problem was they didn't apply for a parental order in the UK. Nobody knew that they had to because they had complied with everything in the US and and all parties concerned were on board and everyone thought everything was fine.

Turns out that of course the parental order was required in the UK, and that here in the UK that child was not recognised as the child of the intended parents.

Thankfully, common sense prevailed, and the Supreme Court did agree to grant the parental order. Notwithstanding the fact that they were about 19 1/2 years outwith the time frame that's strictly allowed for this.

But it's not a route I would recommend. They had the ear of the court on that occasion - far better to make sure that everything is done on time.

00:16:28 David Lee, Host

OK, if I can come back to you, Abha? Donna has talked a lot about the law surrounding surrogacy.

What about the legal context as it affects your work? What regulations do fertility centres like yours have to follow?

00:16:45 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

So we go through, with a couple, initial appointments usually with the intended parents. We have got in addition to what Donna has mentioned, there are a number of blood tests that they have to undergo.

They have to undergo screening like a donor because their gametes are going to be put in somebody else's womb. There are strict timescales for those tests to be done and those tests to be repeated. We are governed for them by the Human Embryology Fertilisation Authority, which is the licensing authorities for our centres across the UK.

We also look at the eligibility criteria and again advise the couples that they need to seek their independent legal advice because it's such a minefield as to who can be the parent, who can be named on the birth certificate...

We also advise them - I mean there are multiple appointments that are required because of explaining all these issues.

I mean, we advise them to take independent advice about immigration status, adoption and other parental responsibility and everything.

We also advise surrogates - we see them separately – we also advise them to take independent legal advice. Both of them have to undergo counseling independently first and then jointly, and that's a minimum requirement, but if more is required, we will do that. That's again a legal requirement.

And surrogates have to undergo blood tests as well. Again, there are timescales of when they have to be done during the treatment and when they have to be repeated.

There are different kind of surrogacies and obviously laws around them are different.

We also advise surrogates as well as intended parents to go on the HFEA website because there is a lot of information there.

We advise them to have the surrogacy arrangement in place so that who is going to be attending the appointments. Who's going to be there whose, whose wishes will be considered and lot of things prior to treatment, during the treatment, pregnancy arrangements and even after the pregnancy arrangements.

00:18:59 David Lee, Host

I mean that is a that's a phenomenal amount of areas to cover.

Do you think that the regulation surrounding surrogacy is keeping pace with that real change and that increase in surrogacy that you've discussed, or do you think some updating might be needed?

00:19:19 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

I think they are already being updated as far as I'm aware, so the Joint Law Commission of England and Wales, as well as The Law Commission of Scotland are working on it.

And now what form and shape they will exactly take I can't predict that, but there was an ascertainment that there is an issue with the increasing number of surrogacy cases.

There are so many minefield legal things, so they need to be simplified and sorted out so that people can actually have their treatment and have families.

There is also a thing about international surrogacy because lot of people go out with UK to have surrogacy. Again, they need to be aware about the laws because bringing the child into the country is not easy. So again, there was talk about the international laws surrounding surrogacy so that there is safety and simplification across the board.

00:20:15 David Lee, Host

OK, thank you and you are the so-called “person responsible” at the Aberdeen fertility centre Abha.

What does that mean and what's your specific role in ensuring that all the necessary regulations are adhered to?

00:20:33 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

It's a minefield of a role, person responsible is something very specific you don't see in the NHS and in any other field apart from the IVF for licensed fertility treatments.

So, from the Human Embryology Fertilisation Authority (HFEA) perspective, I'm answerable to them as person responsible and they expect the person responsible to be the in charge of the clinic and that all the regulatory requirements are met.

So that's my remit - to make sure that everybody is doing what they're supposed to do when they're supposed to do it. That the right equipment is there, and the right laws are followed, the right consents are signed and patients are given the right information, and they are given the right treatment.

So it's a huge role!

00:21:24 David Lee, Host

Indeed, it's it seems it!

So just to come back to you, Donna, just to pick up on a couple of points that you made earlier on.

How common is it for surrogates to object to a parental order in the UK? Is that something that you have come across?

And who actually takes responsibility for the baby at the birth? Does the surrogate immediately have the baby for that six week period, or do the intended parents have the baby at birth?

00:21:51 Donna McKay, Senior Associate, Brodies LLP

The statistic that you've asked, I’m afraid is just not something that I have at my disposal. I'm guessing that these things are dealt with behind closed doors to be honest, and it's not going to be statistics that are made public.

To answer your question about the practicalities of who cares for the child, once he or she is born - there are no hard and fast rules about that. That's the sort of thing that should be agreed in advance, and one of the practical things that could be put into a surrogacy agreement between the surrogate and the intended parents, perhaps.

But the rule is that the child must be residing with the intended parents at the point that the parental order is applied for.

So at some point between that period, when the first six weeks are up and the point where the six month time period elapses, the child must be living with the intended parents so that they can at that point apply to the court for the parental order.

But as far as the practical arrangements are concerned when the child is born, the surrogate can of course determine that the child should go and immediately live with the intended parents because she's the person with parental rights. She gets to determine the child's place of residence, but the best way to deal with all of that and the practical arrangements would be to enter into a surrogacy agreement in advance of the child's birth.

00:23:14 David Lee, Host

OK, we're in quite a complex area already here, Donna and then we bring money in.

What's the situation on finances? Can you pay a surrogate or is it just a question of them being able to receive expenses?

00:23:27 Donna McKay, Senior Associate, Brodies LLP

The law in the UK is very, very clear on that. You cannot enter into a surrogacy arrangement for financial gain. So there cannot be a capital sum agreed or any other financial enhancement attached to a surrogacy arrangement.

To do so is actually a criminal offence, and for a lawyer to negotiate the terms of a surrogacy agreement which includes a financial gain for the surrogate would also be a criminal offence for the lawyer concerned. So it's really important to be clear about that.

There is no rule that says, however, that expenses can't be paid. So it's reasonable expenses, is how it's termed. So for example, if it was the case that the surrogate mother required to curtail her income, if she was a self-employed person - it might be acceptable that there would be expenses paid in connection with that.

I had a situation come some time ago where a couple were considering paying travel expenses to their surrogate. She was finding it difficult to get from home to hospital appointments, it involved several bus journeys and obviously as her pregnancy and progressed they thought that was terribly unfair, so they were going to assist her with taxi fares and that sort of thing, but it cannot be an arrangement for financial gain, that's absolutely prohibited.

00:24:56 David Lee, Host

OK, and what is the role of the solicitor in the surrogacy agreement? Is the solicitor there to draw that up?

You've talked about some of the things that can't be in it, but what needs to be in it?

00:25:08 Donna McKay, Senior Associate, Brodies LLP

Yes, a solicitor absolutely can draw up an agreement of that type, and I think those entering into surrogacy arrangements would be encouraged to have an agreement of that type in place.

We've already touched on one area where there could be a clear plan put in place before the child is born, i.e. where will the child live immediately after his or her birth. But the agreement could also cover matters prior to the child being born. For example, who's entitled to attend at medical appointments? Will it be the surrogate's partner or spouse? Or will it be the intended parents?

You know there are quite a few adults involved in the pregnancy angle of this, so I think it's very important to try and clarify some of the practicalities surrounding the surrogacy. Firstly, to allow the intended parents to feel perhaps more involved in the process. And secondly, I think to avoid potential for any conflict and which in turn can only be helpful to the surrogate mum who is of course trying to go through a difficult enough process as it is - with pregnancy and perhaps any other children or other commitments that that she has to deal with.

00:26:21 David Lee, Host

OK, and what about a surrogacy law at the at the moment, Donna, you know what's the state of play?

I understand the Scottish Law Commission is looking into it now, and that there's also a parallel review going on in England. Can you tell us a little about that?

00:26:36 Donna McKay, Senior Associate, Brodies LLP

Yes, that's correct. At the moment the intended parents have to wait until the child has been born and then apply to the court to become the child's parents, and that process can take a number of months to complete. That then impacts on the intended parents’ ability to make decisions about the child and that could well be a child that's in their care. So at the moment there has been a law reform suggested in this area and the Scottish Law Commission proposes that the law be changed to allow the intended parents to become the legal parents of the child shortly following the child's birth.

The idea is that rather than having the surrogate having to consent to that, the angle will be shifted so that the surrogate mother would have to object to that and would be given a short period after the child is born to do so.

This would really reduce the risk of there being a breakdown in the surrogacy arrangement, which could cause distress to all involved, because it would shorten or limit the scope for a surrogate to change her mind and turn around at the last minute and say that there would not be any handing over of the child.

There's also a suggestion that surrogacy needs to be better regulated. There would be a surrogacy regulator and organisations would be put in place to oversee the arrangements and to ensure that standards and medical facilities are monitored and that they're kept high.

There haven't been any proposals at the moment put forward regarding the issue of payments being made to surrogates, but as part of the consultation the Commission wants to find out and find a bit more about public views on surrogacy payments. So the consultation has included questions regarding the sorts of payments that intended parents could make to surrogates to just find out a bit more about public opinion on that.

Something which is quite unusual in family law here in the UK is that the Scottish and English and Welsh law commissions are actually on board with this. They were all joined up and trying to have a bit more of a coherent approach to this, which is not something we're very used to in this field of family law.

00:29:13 David Lee, Host

You touched on this earlier, Donna, but, why do some people go abroad for surrogacy? What's the legal position, there? And what are the dangers?

00:29:22 Donna McKay, Senior Associate, Brodies LLP

There are no rules preventing anyone going abroad for surrogacy. Unlike the UK other countries do allow surrogates to operate for profit, and that I would suggest may in fact make it a bit easier to find a willing surrogate.

It's also illegal here in the UK for intended parents to advertise seeking the services of a surrogate and in reverse, it's also illegal for a surrogate to advertise her services, but that may not be the case of course in other jurisdictions.

So I think that that's possibly the attraction to looking further away than the local vicinity of the UK to have a surrogacy arrangement, but of course there are pitfalls associated with that.

There are no internationally recognized laws for surrogacy, so each different country will operate under its own surrogacy regimes. It can take several months to bring a surrogate baby back up to the UK following the birth up as the parents may not automatically be recognized as legal parents of the baby, it may be the surrogate in that country who is recognized as a legal parent.

The baby will need a passport to travel and the only person who can apply for the passport is the legal parent of the child.

Care must also be taken though, in these other countries if you are going to start making monetary payments to surrogates in exchange for their services, because at the point when you apply for the parental order in the UK, any payment to which you have made to the surrogate has to be divulged to the Court, and the Court must then grant retrospective permission for that payment. So it really comes down to the discretion of the Court.

The other issue is from a practical point of view, if you are using a surrogate out with the UK, then it would be much harder for the intended parents to keep an eye on the surrogate to make sure that her pregnancy is progressing well and to attend any medical appointments. So they're very much kept at arm's length. You have no guarantees as well as to the level of health care and the standard of care provided by the clinics overseas, which may not be as high as in the UK.

So whilst there may be an initial attraction and it may seem like the fast route to having the baby - which as I alluded to earlier, sometimes the only thing on an intended parent's mind - there are pitfalls, and it may not be the easiest route in the long run.

00:32:04 David Lee, Host

So Abha, we've heard a lot about the legal and practical aspects of surrogacy, but what about the emotional side that Donna is also touched on?

What does the fertility centre do to support people emotionally and what kind of services do you offer in terms of counseling and so on?

00:32:21 Professor Abha Maheshwari MD, Aberdeen Fertility Centre

We say it's a legal minefield, it's an emotional minefield, you're absolutely right there. It's a lot for people to go through. We have multiple appointments with dedicated staff who are trained for these things. Counseling is a big part of it, and as I say, minimum appointments are three; two separate and one joint, however they have more appointments as required.

The things they explore there are motivations of wanting to be a surrogate or reasons and feeling about seeking one; possible impact on social and on familial relationships; possible reaction to success or failure of treatment because treatment is nowhere near 100% success; dealing and coping with childlessness now or later if treatment fails; effect on surrogate of treatment on pregnancy or parting with the baby, because with the parental order, they will be obviously handing over the baby.

We also cover with them the plans to tell and share this with the child or any future children or parents; the plans and implications of future relationship between the intended parents and surrogate mother; and also, the plans and expectations in preparing for potential pregnancy and an actual pregnancy, a birth, how complications or conflicts can be handled; future use of any stored gametes or embryos.

So there is a lot of things that we touch on, but it's not all done at one time because it's so emotional and you have to understand and grasp that all so we have multiple appointments.

Anybody who's contemplating surrogacy needs to be aware it's not a quick process and it cannot be a quick process for the right reasons, because you get the information you get a chance to reflect on that information, and then you get more information.

I mean legally it is difficult, but the emotional side is equally difficult.

00:34:25 David Lee, Host

Thanks very much, Abha, that's really interesting and we've heard a lot there about both the legal minefield of surrogacy, but also about the emotional minefield.

So finally Donna to come to you.

How much of this whole process is about you being a lawyer and advising on the legal aspects and how much of it is actually about providing emotional support as well?

00:34:50 Donna McKay, Senior Associate, Brodies LLP

To answer your first question about which bit of me is giving the advice the answer is probably all the above, and I think to be fair, that's probably something that I take to most areas of my practice. At the end of the day, I'm a human being, and as is the case with all humans, we all bring our own experiences in life to all other aspects of our lives, including our work.

I probably have a better understanding of the sheer weight of the emotional side of all of this whilst the clinic, by its very definition, deals with the clinical side of this.

There is a huge weight in terms of the anxiety, the emotion and just the overwhelming desire, which can be all consuming, to be honest and the need to have a child. So I can absolutely sympathize with that side of things, which I suspect some others just won't quite understand in the same way.

As far as the advice is concerned, I think the answer is to explore all options both here within the UK and overseas. Make sure that any intended parents get the right legal advice at the outset of the process so that they go into it with their eyes open so that they understand the potential pitfalls, the timeframes involved, the difficult journey that they're about to embark on to make sure that they are doing things in the right way for them.

Whether it's advice that I'm tendering to the surrogate or indeed to the intended parents, I think it's really crucial that they get the right advice to make sure that the journey can be made as smooth as possible by agreeing as much of the details surrounding the surrogacy, the practical issues - all of the things that, if they're not in place, could just make a very emotional and difficult situation harder. Make sure that they are sorted out in advance so that the intended parents and the surrogate can go on and enjoy the process of the surrogacy and enjoy bringing the new life into the world.

00:37:06 David Lee, Host

Thank you very much indeed Donna and thank you to Abha for your great insights.

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