For many individuals and couples, the journey to parenthood is not always as straightforward as they may hope.

Surrogacy is one option that offers an alternative route to parenthood for those facing challenges with natural conception or carrying a pregnancy to term. Surrogacy is when a woman carries and gives birth to a baby for another person or couple, who are known as the “intended parents”. 

There are two types of surrogacy options:

• Traditional surrogacy, where the surrogate’s own egg is used; and

• Gestational surrogacy, where the embryo is created through IVF using the intended parents’ or donors’ egg and sperm, meaning that the surrogate has no genetic link to the child. 

Regardless of the type of surrogacy, under Scots law, the surrogate mother is the child’s legal mother at birth. If the surrogate is married or has a civil partner, then her spouse or partner will be considered the child’s legal father. In short, the intended parents do not have any legal rights in respect of that child from birth. Because of this, it is crucial that intended parents seek legal advice from a family solicitor to make an application to the court for a parental order. 

What is a parental order?

A parental order is a Scottish court order that transfers full parental rights and responsibilities in respect of the child from the surrogate mother and the surrogate’s spouse or civil partner (if applicable) to the intended parents. Once the order is granted, the intended parents become the child’s legal parents, the surrogate’s legal rights are revoked, and a new birth certificate will be issued to reflect this.

If a parental order is not obtained, the surrogate will remain the child’s legal mother, regardless of any agreement which has been reached. 

It is important to note that each case will be determined on its own facts. The court will consider a variety of factors before granting the order – it is not an automatic right that the intended parents will be afforded. 

Who can apply, and what are the conditions?

Both individuals and couples can apply for a parental order, so long as they meet certain legal criteria, including:

The application for a parental order should be made within six months of the child’s birth;

• The surrogate and any other person who is the legal parent at the time of the application is fully aware and in agreement to the making of the order;

•  At the time the application is made, the child must be living with the applicant(s), with the applicant(s) being domiciled in the UK;

• Where the applicants are a couple, they must be husband and wife, civil partners, or two people who are living as partners;

• The court must be satisfied that no money or monetary benefit has been paid by the intended parents to the surrogate, other than “expenses reasonably incurred”. 

Case law: exceptions to the rule 

A landmark Court of Session case (AB and XY for Orders under section 54 of the Human Fertilisation and Embryology Act 2008) in 2023 highlighted the discretion that the court may apply when it comes to surrogacy matters. In this case, the intended parents applied for parental orders for twins 21 months after their birth, well beyond the six-month window. In addition, the applicants were no longer together at the point that the applications were made.

Despite these conditions, as set out above, having not been met, Lady Carmichael granted the parental orders. It was communicated in Lady Carmichael’s decision that the court’s overriding duty and primary consideration was to promote the children’s welfare and best interests.

This example demonstrates that each case will be viewed on its own merits and circumstances. 

Law reform – what changes are being proposed?

The Scottish Law Commission joined with the Law Commission of England & Wales in creating a joint project which identified and recommended significant reforms to surrogacy law within the UK.

One of the most significant reforms that is being recommended is the introduction of a “new pathway” which will enable the intended parents to be recognised as the legal parents of the child from birth. This would provide greater protection to the intended parents and would remove the requirement for a parental order application. Essential screening is also being recommended prior to conception, such as health and criminal records checks to safeguard both the surrogate and intended parents from the outset. 

In addition, the creation of a Surrogacy Register is being recommended which will allow surrogate-born people greater access to information about their origins. Greater clarification on what is considered reasonable in terms of payments that can be made to the surrogate is recommended, with a list of specific categories provided.

While these recommendations were published in 2023, the Scottish Government has not yet committed to implementing the proposed legislation. 

Thinking about surrogacy?

Surrogacy offers an alternative route to parenthood for many people. However, this option does come with legal and emotional complexities. If you are considering this option, our family law team can advise you on every step of the process.  

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