Becoming a parent is one of the most significant events in many people’s lives and some may choose to consider surrogacy.
Surrogacy is when a woman gives birth to a baby for another person or couple, known as the “intended parent(s)”. There are two types: full surrogacy, where the intended mother’s eggs are used; and partial, where the surrogate’s eggs are fertilised by the sperm of the intended father.
Acceptance of surrogacy and the number of children born in this way has increased almost fourfold over the past decade, with estimates of 400 surrogate births annually.
In April 2023 The Law Commissions of England and Wales, and of Scotland, published a joint report recommending a new system of governing surrogacy.
Parliament will now consider the recommendations proposed. Thereafter a full response to this must be made within one year (April 2024). The proposed reform is the biggest change to the regulations surrounding surrogacy for years. The proposed changes are a step forward and will go a long way towards ensuring that the motivations of the parties involved remain altruistic rather than commercial.
It is also hoped that the new recommendations will encourage intra-UK surrogacy agreements, reducing the potential exploitation of mothers in other countries and their associated ethical concerns.
The law surrounding this will continue to be that the welfare of the child is of paramount consideration for the court.
The reforms outline a pathway to legal parenthood in domestic surrogacy arrangements. Currently intended parents must apply to the court for a Parental Order after the child is six weeks of age and, the surrogate mother must consent to the Parental Order being granted.
One of the key features in the proposed reform is in respect of who would be the child’s legal parents at birth. Consent is key here.
Unless consent is withdrawn by the surrogate mother before birth, the intended parents would be the legal parents at birth. If consent is withdrawn prior to birth the surrogate mother would be the legal parent and the intended parents would need to apply for a Parental Order. If consent is withdrawn after six weeks by the surrogate mother, she may apply to the Court for a Parental Order.
The reform also provides clarity on acceptable payments, known as “permitted payments” to a surrogate mother. These preclude compensatory payments and living expenses such as rent.
A surrogate mother should not be better or worse off from entering into the arrangement, and commercial surrogacy is expressly prohibited.
Other reforms include:
- A Surrogacy Register to hold information about the parties involved and address the lack of a framework allowing surrogate-born people to access information about their surrogate and intended parents.
- New Guidance on nationality and immigration to deal with international arrangements which risk a child facing a prolonged wait in a foreign country for the correct documentation to enter the UK.
- Pre-conception safeguards, currently lacking, to protect the interests of all participants.
In summary, The Law Commissions’ report is a positive step forward.
Kara MacGregor-Duke is an Associate at Complete Clarity Solicitors and Simplicity Legal.
Why are you making commenting on The Herald only available to subscribers?
It should have been a safe space for informed debate, somewhere for readers to discuss issues around the biggest stories of the day, but all too often the below the line comments on most websites have become bogged down by off-topic discussions and abuse.
heraldscotland.com is tackling this problem by allowing only subscribers to comment.
We are doing this to improve the experience for our loyal readers and we believe it will reduce the ability of trolls and troublemakers, who occasionally find their way onto our site, to abuse our journalists and readers. We also hope it will help the comments section fulfil its promise as a part of Scotland's conversation with itself.
We are lucky at The Herald. We are read by an informed, educated readership who can add their knowledge and insights to our stories.
That is invaluable.
We are making the subscriber-only change to support our valued readers, who tell us they don't want the site cluttered up with irrelevant comments, untruths and abuse.
In the past, the journalist’s job was to collect and distribute information to the audience. Technology means that readers can shape a discussion. We look forward to hearing from you on heraldscotland.com
Comments & Moderation
Readers’ comments: You are personally liable for the content of any comments you upload to this website, so please act responsibly. We do not pre-moderate or monitor readers’ comments appearing on our websites, but we do post-moderate in response to complaints we receive or otherwise when a potential problem comes to our attention. You can make a complaint by using the ‘report this post’ link . We may then apply our discretion under the user terms to amend or delete comments.
Post moderation is undertaken full-time 9am-6pm on weekdays, and on a part-time basis outwith those hours.
Read the rules here