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Surrogacy in Scotland

29th January 2018

Kim and Kanye have just welcomed their third child via surrogacy. Celebrity surrogacy arrangements certainly raise awareness of surrogacy as an increasingly popular option for couples who are unable to have a baby naturally.

There are two types of surrogacy:

(1) partial surrogacy – where the surrogate mother’s egg is fertilised by the intended father’s sperm and

(2) full surrogacy – where the embryo has no genetic link to the surrogate mother (this is also known as host surrogacy).

Perhaps unsurprisingly the law on surrogacy in Scotland (and the rest of the UK) is quite different to the approach taken across the pond. Surrogacy is legal in Scotland but commercial surrogacy is not. Therefore, no Kardashian-esque payments can be made to a surrogate in Scotland; all a surrogate can be paid are her reasonable expenses.

So, what does surrogacy involve in Scotland?

  • If you have identified a suitable surrogate then it’s important for all parties to seek legal advice. The surrogate should seek separate and independent legal advice herself and, if she has a husband, he should get legal advice too;
  • A surrogacy agreement should be put in place. It’s important to note that these agreements are not enforceable but they should be entered into by all parties involved in the surrogacy arrangement, including the surrogate’s husband, if she has one.  The agreements can include, for example, provision for who’s to be present during the birth and whether the surrogate will breastfeed the baby for a short time after birth.
  • Following the child’s birth, the surrogate is the mother of the child in the eyes of the law. If she’s married then her husband is the child’s father.  This is the case even if there is no genetic link between either of them and the child.  That’s why it’s so important to seek legal advice before entering into any surrogacy arrangement.
  • After the child’s birth the intended parents must apply to the court for parental orders. This must be done before the child is 6 months old but no earlier than 6 weeks old.  The granting of a parental order results in the intended parents stepping into the shoes of the surrogate and the intended parents acquire parental rights and responsibilities in relation to the child when the parental order is granted.  This is arguably the most important step in the surrogacy process.  Without parental orders, the intended parents have no rights in relation to the child and indeed, even if the child is genetically theirs, the child is not considered their child until the parental orders are granted.

It’s imperative to seek legal advice if you are considering entering into a surrogacy arrangement. The family team at Morisons are experts in this niche area. For more information please contact a member of our expert team on 0131 226 6541 or 0141 3325666.

“Morisons’ experienced and professional team communicates in an effective and timely manner…” 

“…The team has a niche in surrogacy matters and also handles international child abduction cases alongside other family law work such as pre-nuptial, post-nuptial and cohabitation agreements…” Legal 500

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Rachael Macdonald - Divorce and Family Law Specialist in Edinburgh

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