Surrogacy in the Modern Era

This week, celebrity couple Robbie Williams and Ayda Field made the surprise announcement of the birth of their fourth child, son Beau. Beau is the second of their children who has been born via a surrogacy arrangement. 

Here in Scotland, surrogacy is legal, although it is important to note that the legal issues are fairly complex.

Partial vs full surrogacy

Surrogacy can either be partial or full.

Partial surrogacy involves the intended father’s sperm fertilising the surrogate mother’s egg.

In the case of full surrogacy, there is no genetic link between the surrogate mother and child. Full surrogacy involves implantation of an embryo using one of the following:-

1. The eggs and sperm of the intended parents;
2. A donated egg, fertilised with the sperm of the intended father; or
3. Donor eggs and sperm. 

Until an Order of the Court, the surrogate mother will always be treated as the child’s mother. Where the surrogate mother is married or in a civil partnership, pending a Court Order being granted, her husband, wife or civil partner is treated as the child's second parent. If the surrogate is not married or in a civil partnership at the time of conception, the biological father will usually be treated as the child's legal father. 

Surrogacy arrangements

Surrogacy arrangements cannot be made on a commercial basis, i.e in exchange for payment of money. Although some form of payment may be made to a surrogate mother, legally this can only amount to “reasonable expenses”.

Surrogacy arrangements are also not enforceable. The surrogate mother has the legal right to keep the child when it is born, even if a contract has been signed and expenses paid to the surrogate mother.

It is illegal for a surrogate mother to advertise her services and, similarly, it is illegal to advertise for a surrogate. It is also illegal for an organisation or clinic to find a surrogate for you.

It is, however, possible to meet potential surrogate mothers through the non-profit organisation, Surrogacy UK.

Law reform

The law surrounding surrogacy, and the regulation of such arrangements, is presently under review however. Lobbyists have been calling for the law on surrogacy to be reformed for some time, citing the current provisions as being outdated, in particular in relation to the issue of parentage.

The Scottish Law Commission and the Law Commission of England & Wales are jointly in the process of considering proposals: which include bringing in various safeguards, including counselling, legal advice, medical assessments and criminal background checks as part of a new regulated process, to ensure standards and protection for surrogates, intended parents and the children of such arrangements.  Significantly, they have already announced that they are proposing to allow intended parents to become the legal parents when the child is born, subject to the surrogate retaining the right to object for a short period after the birth.

The Law Commissions’ formal consultation process came to an end in October 2019; and a final Report with recommendations for reform of the law, together with a draft Bill are expected in 2021.

If you are considering surrogacy, either as a parent or as a surrogate, it is important to take legal advice as early as possible. 

If you would like to speak to one of our family lawyers about your circumstances, click here.