What is surrogacy?
Surrogacy is the process by which an arrangement is made with a carrying mother that she will hand over the child she gives birth to immediately after the birth and relinquish her parental status.
There are two forms of surrogacy, partial or full. Partial surrogacy involves the surrogate mother’s egg being fertilised with the intended father’s sperm. In full surrogacy there is no genetic link between the surrogate mother and child. Instead, it involves the implantation of an embryo using one of the following:-
- The eggs and sperm of the intended parents
- A donated egg fertilised by the sperm of the intended father
- Donor eggs and sperm
Is surrogacy legal in the UK?
Surrogacy arrangements are legal in the UK, although the law bars arrangements being brokered on a commercial basis and makes it an offence to advertise for a surrogate mother. It is also illegal for an organisation or clinic to find a surrogate for you. It is, however, possible to meet potential surrogate mothers through the non-profit organisation, Surrogacy UK. Although some form of payment may be made to the surrogate mother, legally this can only amount to “reasonable expenses”.
The close regulation of surrogacy in the UK can make travelling abroad seem attractive. However, it is important for couples to be aware that, whether they conceive at home or abroad, Scottish laws on parenthood applies. International surrogacy arrangements can be legally complex and should not be entered into without careful legal advice.
Under Scottish law, the surrogate mother is always treated as the legal mother of a child at birth. If the surrogate is married or in a civil partnership, her husband/civil partner is treated as the child’s second parent, and this excludes the intended father from having any legal status at birth. If the surrogate is not married or in a civil partnership (at the time of conception), the biological father will usually be treated as the child’s legal father.
Applying for a Parental Order
Couples who enter into a surrogacy arrangement may apply to the court within six months of their child’s birth for a ‘parental order’ in order to acquire parenthood. Parental orders are designed specifically for surrogacy situations and have the effect of extinguishing the status of the surrogate mother (and her husband/civil partner) and conferring full parental status instead on the applicants. Following the grant of a parental order, the child will be issued with a new birth certificate naming the applicants as the child’s parents.
Same-sex couples are able to apply whether or not they are married or in a civil partners, but they must be in a relationship; single people are ineligible.
Surrogacy arrangements are legally complex, and the courts consistently recommend that anyone considering embarking on surrogacy obtains specialist legal advice at the outset.