Surrogacy: What does the law say?

Surrogacy is being used increasingly by couples and individuals as a way of having children. STV star Laura Boyd and her husband recently welcomed a daughter into the world, who was carried by surrogate mother Jayne, Laura’s sister in law. Laura lives with a form of leukemia, so Jayne stepped in as a surrogate mother to carry Laura and her husband’s biological child.

Other famous faces such as Tom Daley have used surrogacy as a way of fulfilling a dream to become a parent. However, the law in relation to surrogacy is extremely complex, with a number of requirements being imposed on all parties involved.

When the child is born, the law classifies the individual who carried the child as their legal mother. Many people are surprised when they discover this – as even though a woman’s eggs may have formed the gametes, the woman carrying the child will still be classified as the child’s legal mother, regardless of whose eggs are used. Similarly, any man married to the legal mother is presumed to be the father of the child, unless it can be shown that he did not consent to the arrangement.

The position regarding legal parentage can be changed by applying to the Court for a parental order. Such applications must be timed very carefully, as it is not possible to apply for a parental order within the first six weeks of the child’s birth, but the application must be made within six months of the birth. This position must be followed – it is crucial to note that surrogacy arrangements are not enforceable and cannot be for commercial profit.

In early 2019, it also became possible for single applicants, as well as couples, to apply for parental orders. There are further proposals planned to modernise the law in relation to surrogacy, which could involve the creation of an independent surrogacy regulator. With more and more people turning to surrogacy, it is vitally important that the law can keep up with modern life, and protect the needs of all individuals involved in the process.

For those considering a surrogacy arrangement, receiving the correct legal expertise at this important stage is vitally important. For expert legal advice on surrogacy, please contact our Family Law Team.

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