Surrogacy

Commissioner

David Johnston QC

Team member

Gillian Swanson, Project Manager
Katie Hendry, Legal Assistant

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.  We aim to complete the project by the end of the Programme, that is by the end of 2022.

What is surrogacy? 

Surrogacy describes the situation where a woman bears a child on behalf of another person or persons who intend to become the child’s parents for all purposes. The intended parents can become the legal parents of the child born to the surrogate mother by obtaining a Parental Order after the child has been born.

In the UK surrogacy is governed by the Surrogacy Arrangements Act 1985 and certain provisions of the Human Fertilisation and Embryology Act 2008, areas of law generally reserved to the UK Parliament under the Scotland Act 1998. 

Why is it necessary to examine the current law on surrogacy?

Surrogacy, which is becoming increasingly prevalent, raises important issues for both the children and adults involved in such arrangements: these include questions of parentage and the prevention of exploitation of children and others.  It is therefore concerning that it appears that the law has fallen behind changing social attitudes surrounding surrogacy with the result that the law, as governed by the 1985 and 2008 Acts, may  be honoured more in the breach than in the observance.  This is clearly unsatisfactory.

Reform will deliver significant benefits of clarity, modernity and the protection of those who enter into surrogacy arrangements and, most importantly, of the children born as a result of such arrangements.

The Commissions aim to publish a joint Consultation Paper by spring 2019.

Contact

If you require any further information about the surrogacy project, or if there are matters you wish to raise on the topic of surrogacy, please email:
gillian.swanson@scotlawcom.gsi.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.