Surrogacy in Scotland

First, some definitions.

• The intended parent or parents are the individual or couple who wish a childand require a surrogate to do so.   It is now possible for a single person to become a parent through surrogacy. Where the intended parents are a couple, the parties must be either married, civil partners or living as partners in an enduring family relationship.
• The surrogate mother is the female who carries and bears the child.  If she provides the egg, fertilised by the intended father, she has a genetic link with the child.  If she receives an embryo, and subsequently carries and bears the child, she has no genetic link.  The former arrangement is termed “traditional surrogacy”, while the latter is terms “gestational surrogacy”.

Surrogacy requires one, or both, of the intended parents to have a genetic link with the child.

The task of the lawyer is to place the intended parent(s) in exactly the same legal position as natural parents.  This is achieved by formal legal procedure which seeks for the Court to make “parental orders” in favour of the intended parent(s).  The effect of parental orders is to remove any legal position the surrogate mother may hold in relation to the child and establish the intended parent(s) as the legal parents of the child.  It is vital that the intended parent(s) become the legal parents of the child for a number of reasons.  For example, as legal parent(s) the intended parent(s) havethe right and responsibility of making all decisions in relation to the child.  Looking further ahead, the intended parent(s) becoming legal parents has a fundamental effect with regard to succession.

Adoption is a similar procedure where the parent(s) may become the legal parent(s) of a child, where neither has a genetic link to the child.

There are two forms of surrogacy:

• As explained above, in traditional surrogacy, the surrogate mother’s egg is used, making her the genetic mother, fertilised by the intended father.
• In gestational surrogacy, the egg is provided by the intended mother or a donor, fertilised by the intended father or a donor. The egg is fertilised through “in vitro fertilisation” (IVF) and then placed inside the surrogate mother.

Examples of surrogacy include:

• A family member who agrees to carry a baby for a relative,
• A married or cohabiting couple who wish to appoint a surrogate mother who is based in the United Kingdom or overseas.
• A surrogate mother who agrees to carry a child for a same sex male couple.

This is an agreement between intended parents and the surrogate mother, arranging important details of the surrogacy.

As indicated below it is helpful to have an agreement and some clinics and maternity units require there to be an agreement.

No, but they are extremely helpful, indicating what the parties wish, and requiring the parties to think through some difficult problems which may arise.

Initially, prior to the granting of the parental orders, the surrogate mother will be regarded as the child’s legal mother.  Who the child’s legal father is prior to the granting of parental orders depends upon the details of the arrangement.