Surrogacy

Commissioner

Dr Gillian Black

Team member

Gillian Swanson, Project Manager
Victoria Hayward, Legal Assistant

Last year we published a joint Consultation Paper on Building families through surrogacy: a new law.  A Summary and news release are also available.  The consultation period closed on 11 October.  We are extremely grateful to all those who have shared their views with us.  

Background

The project on surrogacy is Item No 6 of our Tenth Programme of Law Reform.  Also, the UK Government has referred the project to us as a joint project with the Law Commission of England and Wales.  The Law Commission of England and Wales is leading the project.

What is surrogacy? 

Surrogacy is where a woman bears a child on behalf of someone else or a couple, who then intend to become the child’s parents (the intended parents). Surrogacy is legal in the UK.

What is wrong with the current law?

Currently, intended parents have to wait until the child has been born and then apply to a court to become the child’s parents. The process can take many months to complete.  This process affects the intended parents’ ability to take decisions about the child in their care.

Furthermore, insufficient regulation makes it difficult to monitor the surrogacy process and those involved in it, and ensure that standards throughout the process are kept high. There is also a lack of clarity around surrogacy payments. The law currently permits intended parents to pay ‘reasonable expenses’ to the surrogate, however this is unclear and difficult to apply in practice.

What did the Consultation Paper cover?

Change is needed to make sure the law works for everyone involved.  To reflect the wishes of surrogates and intended parents, the Law Commissions proposed to allow intended parents to become legal parents when the child is born, subject to the surrogate retaining a right to object for a short period after the birth. 

The new process would require safeguards – such as counselling and independent legal advice – for those entering into the surrogacy arrangement. These would reduce the risk of the arrangement breaking down which can cause great distress for all involved.

A surrogacy regulator and regulated surrogacy organisations would oversee these arrangements and ensure standards could be monitored and kept high.

For surrogacy arrangements that do not qualify for this new regulated process, the Law Commissions also proposed amendments to improve regulation of the existing parental order route which would make the law clearer, easier to apply and more cost-effective.

The Commissions did not put forward any proposals around payments to the surrogate. However, as part of the consultation, the Commissions wanted to understand public views on surrogacy payments. The consultation therefore included questions regarding the categories of payment that the intended parents should be able to pay to the surrogate.

Next steps

The response to our consultation was vast and we are very grateful for the extent to which a wide range of stakeholders have engaged with us on these important issues. We are analysing those responses carefully and continuing to engage with stakeholders about the views they have expressed. We are also carefully monitoring the evolving case law around parenthood and birth registration.

After we have completed our analysis we will move to formulating our final policy.  Thereafter recommendations will be set out in a report and reflected in a draft Bill.  In light of the extent of stakeholder interest and the evolving case law, we anticipate that the project will run longer than previously planned – until spring 2022.

Contact

If you require any further information about the surrogacy project, please email:  gillian.swanson@scotlawcom.gov.uk

If you would like to be kept informed of future publications and events on this project, we would be happy to add you to our email mailing list on request.