Could surrogacy law change in Scotland? What intended parents need to know

Surrogacy Awareness Week 2026 took place from August 1st to August 7th, recognising and raising awareness of the increasing number of families who are opting to use the process of surrogacy as an alternative path to parenthood. Applications for parental orders in the UK reached an all-time high in 2025, with 981 applications being made. However, the number of parental order applications does not truly reflect the number of surrogate-born children each year. Whilst a parental order is required for the intended parents to become the child’s legal parents, in practice, not every parent is aware of this requirement. 

Surrogacy has helped many people build their families, yet the legal framework that governs it has remained largely unchanged for decades, having been in place for almost 30 years. 

As family structures have evolved and more people have turned to surrogacy, questions have naturally followed. Does the current law reflect the realities of modern families? Could the legal process be simpler? And what might future reform mean for intended parents, surrogates and, most importantly, the children involved?

These are questions that the Scottish Law Commission and the Law Commission of England and Wales have already considered. While no changes have been made to the law at the time of writing, their proposals offer an insight into what a future system could look like, and what current issues are in place, which intended parents should be aware of.

Why is reform being discussed?

The current legal framework was developed at a time when surrogacy was far less common than it is today.

Under the existing law, the woman who gives birth is recognised as the child's legal mother, regardless of the intentions of everyone involved. Intended parents must then apply to the court for a parental order before they become the child's legal parents. This aspect of the current legal framework is criticised for not properly reflecting the intentions of the parties involved. On a practical level, issues can arise as a result of this. For example, if medical decisions need to be made following the birth of the child and prior to a parental order being granted, it is only the surrogate mother who can make such decisions. 

Another aspect of the current legal framework which is subject to criticism relates to the lack of clarity on what level of payments can be made to a surrogate mother in the UK. As things stand, it is illegal for intended parents to pay a surrogate mother for anything other than “reasonable expenses”. Reform is required to provide greater clarity on what “reasonable expenses” are, as case law demonstrates that payments are being made which appear beyond a general “expense” with no challenge from the court.

What has been proposed?

In 2023, the Scottish Law Commission and the Law Commission of England and Wales published a joint report recommending significant reform of surrogacy law.

One of the most notable proposals is the creation of a new regulated pathway for eligible UK surrogacy arrangements. Under this model, intended parents who meet the required safeguards could become the child's legal parents from birth, rather than applying for a parental order afterwards. The proposals also include enhanced screening, independent legal advice, counselling and oversight by regulated non-profit surrogacy organisations.

The recommendations are intended to provide greater legal certainty while continuing to protect surrogates, intended parents and children.

Has the law changed?

Not yet.

Although the Law Commissions have produced draft legislation, the UK Government has confirmed that it has not yet brought forward a Surrogacy Bill and that any response to the recommendations will depend on future legislative priorities. The existing legal framework therefore continues to apply across Scotland.

For anyone considering surrogacy today, it is important to understand the law as it currently stands rather than relying on proposals that have not been enacted.

What does this mean for intended parents?

If you are considering surrogacy, it is important to seek legal advice early on in the process so that you understand the legal requirements. You can read our brief guide to surrogacy in Scotland here.

Every surrogacy journey is different, and the current legal requirements remain fully in force. Early legal advice can help intended parents understand their legal position, plan for the steps that will follow the birth of their child and avoid unnecessary uncertainty during what should be an exciting time.

Looking ahead

The proposals published by the Law Commissions reflect a broader recognition that families are formed in many different ways.

For intended parents, the message is straightforward. Keep informed about developments, but make decisions based on the law as it exists today. Specialist legal advice remains the best way to understand your rights and responsibilities throughout your journey to parenthood.

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