Introduction
Surrogacy, a practice where a woman carries and gives birth to a child for another individual or couple, raises complex legal, ethical, and social questions. In Scotland, the law on surrogacy is shaped by a combination of UK-wide legislation and specific Scots law principles, reflecting the distinct legal system within the United Kingdom. This essay aims to provide a detailed examination of the legal framework governing surrogacy in Scotland, focusing on key legislation, the rights and responsibilities of parties involved, and the challenges posed by the current system. The discussion will explore the foundational statutes, such as the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008, while also addressing issues of parental rights, consent, and the prohibition of commercial surrogacy. By considering the practical implications and limitations of these laws, this essay seeks to offer a comprehensive overview for students of Scots law, highlighting areas of contention and the need for potential reform.
Legislative Framework Governing Surrogacy
The legal basis for surrogacy in Scotland is primarily established through UK-wide legislation, as matters of family law relating to assisted reproduction are not fully devolved. The Surrogacy Arrangements Act 1985 represents the earliest significant statute in this area, explicitly prohibiting commercial surrogacy across the UK, including Scotland. Under this Act, it is illegal to advertise for a surrogate or to facilitate surrogacy arrangements for profit (Surrogacy Arrangements Act 1985, s.2). This means that surrogacy in Scotland must be altruistic, with only reasonable expenses permitted to be paid to the surrogate, such as medical costs or loss of earnings. Violations of this prohibition can result in criminal penalties, reflecting the law’s intent to prevent the commodification of human life.
Further clarity on the legal status of surrogacy agreements is provided by the Human Fertilisation and Embryology Act 2008 (HFEA 2008), which governs assisted reproductive technologies. This Act stipulates that surrogacy agreements are not legally enforceable in the UK, including Scotland (HFEA 2008, s.54). Consequently, even if a written agreement exists between the surrogate and the intended parents, it cannot be upheld in court. This lack of enforceability creates uncertainty, as it relies heavily on trust between parties. Indeed, while the law aims to protect against exploitation, it arguably leaves all parties vulnerable in cases of disagreement, particularly regarding the child’s future.
Parental Rights and Legal Parenthood
One of the most critical aspects of surrogacy law in Scotland is the determination of legal parenthood. Under the HFEA 2008, the surrogate mother is automatically considered the legal mother of the child at birth, regardless of genetic connection (HFEA 2008, s.33). If the surrogate is married or in a civil partnership, her spouse or partner is presumed to be the legal second parent unless they did not consent to the arrangement (HFEA 2008, s.35). This default position often surprises intended parents, who may assume that their biological connection to the child grants them immediate legal rights. However, this is not the case under current Scots law.
To transfer legal parenthood to the intended parents, a Parental Order must be sought from a Scottish court. As outlined in Section 54 of the HFEA 2008, specific criteria must be met for such an order to be granted. These include that at least one intended parent must have a genetic connection to the child, the surrogate must provide full and free consent (which cannot be given within six weeks of the birth), and the application must typically be made within six months of the child’s birth. Additionally, the court must be satisfied that no money or benefit, other than reasonable expenses, has been paid to the surrogate (HFEA 2008, s.54(8)). The process, though necessary to secure legal rights, is often seen as slow and emotionally taxing for all involved. Furthermore, the requirement for the surrogate’s consent post-birth introduces a risk that she may choose to retain legal motherhood, leaving intended parents with limited recourse.
Challenges and Limitations of the Current Law
Despite the clear legislative framework, the law on surrogacy in Scotland faces several challenges. One significant issue is the prohibition of commercial surrogacy, which, while ethically grounded, drives some Scottish couples to seek surrogacy arrangements abroad in countries where commercial agreements are permitted. This creates legal complexities, as international surrogacy arrangements may not align with Scottish or UK law, particularly concerning the recognition of parenthood. For instance, foreign birth certificates naming the intended parents as legal parents are not automatically recognised in Scotland, often necessitating complex legal proceedings upon the child’s return (Bainham, 2013). This highlights a critical limitation of the current system: its inability to adequately address the global nature of modern surrogacy.
Moreover, the lack of enforceability of surrogacy agreements raises questions about the protection of all parties’ rights. As the agreement holds no legal weight, there is little to prevent a surrogate from changing her mind, or indeed, for intended parents to refuse to take responsibility for the child. While the welfare of the child remains the paramount consideration under Scots family law, as reinforced by the Children (Scotland) Act 1995, the uncertainty can lead to emotionally and financially draining disputes (Children (Scotland) Act 1995, s.11). Some scholars argue that this gap in the law necessitates reform to introduce limited enforceability or clearer guidelines on pre-birth agreements (Horsey and Sheldon, 2012). However, any such change would need to balance the prevention of exploitation with the need to provide certainty and fairness.
Ethical and Social Considerations
Beyond the legal framework, surrogacy in Scotland is shaped by broader ethical and social debates that influence legislative development. The prohibition on commercial surrogacy, for instance, reflects a societal consensus that childbirth should not be transactional, a view shared across much of the UK (Prosser, 2015). Yet, this stance is not without criticism, as it may disproportionately impact less affluent couples who cannot afford international surrogacy or the associated legal costs. Additionally, the requirement for a genetic link under Section 54 of the HFEA 2008 excludes some intended parents, such as same-sex couples using donor gametes, from easily accessing parental orders, raising questions of equality and fairness.
Another concern is the potential for psychological harm to surrogates, who may face emotional attachment to the child or societal stigma. Although Scottish courts prioritise consent and the absence of coercion, there is limited statutory guidance on pre-surrogacy counselling or support. This gap suggests a need for more comprehensive regulations that address not only legal but also emotional and social dimensions of surrogacy.
Conclusion
In conclusion, the law on surrogacy in Scotland, grounded in the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008, provides a framework that prioritises altruistic arrangements and the welfare of the child. Key aspects, such as the non-enforceability of agreements and the process for transferring parental rights through Parental Orders, aim to prevent exploitation while ensuring legal clarity. However, the current system is not without flaws, particularly in addressing international surrogacy, the lack of enforceable agreements, and the emotional and social challenges faced by all parties. These limitations suggest a need for reform to adapt to contemporary realities, potentially through clearer guidelines or limited enforceability of agreements. For students of Scots law, understanding these tensions underscores the dynamic interplay between legal principles, ethical considerations, and societal values in shaping family law. Ultimately, while the law provides a foundation, its practical application reveals areas where further development is arguably essential to meet the needs of modern families.
References
- Bainham, A. (2013) Children: The Modern Law. 4th ed. Bristol: Family Law.
- Children (Scotland) Act 1995, c.36. London: HMSO.
- Horsey, K. and Sheldon, S. (2012) ‘Still hazy after all these years: The law regulating surrogacy’, Medical Law Review, 20(1), pp. 67-89.
- Human Fertilisation and Embryology Act 2008, c.22. London: HMSO.
- Prosser, J. (2015) ‘Surrogacy: Policy and Practice in the UK’, Journal of Social Welfare and Family Law, 37(3), pp. 298-310.
- Surrogacy Arrangements Act 1985, c.49. London: HMSO.
