Surrogacy arrangements are reasonably rare; it is thought the number of surrogacy cases in Scotland last year was about a dozen, although official figures are lacking. However, the number of couples applying to the courts to be formally recognised as the parents of a child following a surrogacy arrangement has increased across the UK as a whole in recent years.
This reflects medical advances, wider changes in society and an increasing willingness to recognise less traditional family structures. Yet surrogacy law currently ignores the desire of a single person to become a parent, stipulating that applications must be made by either a same-sex or opposite -sex couple. However, this looks certain to change with the UK Government set to allow single parents to apply for a parental order.
The surrogate, and her spouse if she has one, are the legal parents of the child at birth. The intended parents must then make an application to the court for a parental order. The parental order extinguishes the surrogate’s parenthood and recognises the intended parents as the child’s parents, giving them all legal rights and responsibilities of parents and amending the original birth certificate.
If the legal changes are successful, the government will, for the first time, allow single people to become a parent through surrogacy. The changes have been proposed following a high-profile case in England where the High Court declared that current law was discriminatory against single parents and their children and breached human rights law.
The government will use a remedial order to change the law, a fast-track procedure which can amend law found to be incompatible with human rights law. This will mean single parents will be able to apply for an order within months of the legal change being introduced. The government plans to introduce the change in May, meaning single parents could have the legal right to apply as early as autumn 2017.
In light of the restrictions on commercial surrogacy in the UK and a difficulty in finding willing surrogates some people have turned to countries where commercial surrogacy is legally possible. However, in the wake of high-profile cases, the number of countries is shrinking.
When entering a surrogacy agreement abroad, prospective parents need to be absolutely clear about the immigration status of their baby to ensure they can bring the child back to the UK after it is born. They also need to ensure that, on return, they apply to be the legal parents in Scotland, even if they have a birth certificate with their names on it from the other country, and that they do so within the set period of time.
For many people, this change in the law will be an important step forward. It gives equality and enables every person to realise their hope of becoming a parent regardless of their relationship status. This change will also ensure the law protects both the parent and child, which can only be welcomed.
Jennifer Maciver is Legal Director for Family Law, Gillespie Macandrew