The Law of Surrogacy: A Call for Action

This blog is the fourth in our series, “Gender (in)justice: Views from Scotland”, featuring pieces authored by legal academics at Glasgow Caledonian University. GCU Law has a strong socio-legal research culture, and this blog series draws on our research across diverse legal contexts. This blog series will explore recent legal developments and emerging legal challenges at the intersection of gender and justice in the law of Scotland. By publishing pieces exploring gender justice issues from a Scots Law perspective, we hope to inspire discussion and invite critical perspectives not only among researchers working in the Scottish context, but from our colleagues in the rest of the UK and beyond.  

By Melissa Murray

Keywords: surrogacy; surrogate; parents; family law

The practice of surrogacy is one which has been described as raising “complex legal and ethical concerns.”[i] It has been the subject of extensive academic, public and political debate across the world, with much of this centred on the impact various approaches to regulation have on surrogates. From a Scottish perspective, 2024 was a particularly significant year as the first two surrogacy cases reached our courts, ultimately confirming challenges with the current legislation.

Surrogacy law in the UK has been described as “woefully out of date” and, as will be outlined below, it has become almost routine for elements of it to be disregarded by the courts. The purpose of this blog is therefore to highlight that given these challenges, surrogacy deserves the appropriate parliamentary time needed to properly consider the best approach to regulation; one which best protects the rights of all parties involved.

Across the world, surrogacy has attracted substantial legislative attention recently, with several jurisdictions significantly reforming their approach to regulation. However, as will be discussed below, despite a comprehensive review of UK law by the Joint Law Commissions, it disappointingly seems unlikely that the UK Government will prioritise reforms any time soon.

Surrogacy and Gender

There are few topics within family and child law that attract such a diversity of opinion. Surrogacy is a practice that incites strong views from both those who view the practice as a positive way of establishing a family and are therefore in favour of regulation, and those who condemn the practice outright and wish to see it prohibited.

The arguments on both sides are often inherently gendered. Some critics of the practice cite the risks of exploiting vulnerable women and the potential commodification of women’s bodies, while others view the practice as an opportunity to respect reproductive autonomy and liberty and see more liberal regulation as a means of protecting human rights.

What is the law on surrogacy?

It is notable that despite the globalised nature of surrogacy there is currently no international regulation of it. On a domestic level, there are numerous different approaches to regulation; some jurisdictions do not regulate the practice at all, some require the use of adoption proceedings to transfer legal parentage, and some provide a mechanism for the intended parents to be the child’s legal parents at birth. Many jurisdictions, including the UK, recognise the surrogate as the child’s legal mother at birth, and therefore require some post-birth transferal process in order for the child’s intended parents to become their legal parents. Critics of this approach argue that having the surrogate be the legal mother at birth fails to reflect the intentions of both the surrogate and intended parents at the time of conception, with the risk of breakdown of the surrogacy arrangement lying with the surrogate.

Surrogacy is a reserved matter under the Scotland Act 1998, meaning that only the UK Parliament can legislate in this area, and it is not possible for the Scottish Parliament to enact Scotland-specific legislation. There are currently two key pieces of legislation relevant to surrogacy arrangements – the hastily-passed Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008. The former was a responsive piece of legislation, rushed through parliament in the aftermath of public outcry following the widely-reported case of Baby Cotton – a case involving the UK’s first commercial surrogate. It has therefore been suggested that it failed to receive the appropriate level of scrutiny.

Whilst surrogacy is legal in the UK, commercialised aspects are not permitted and the 1985 Act states that surrogacy contracts are unenforceable. The 1985 Act is, however, primarily concerned with offences related to surrogacy arrangements, while the 2008 Act outlines the process for obtaining a parental order – the means by which legal parentage can be transferred from the surrogate to the intended parents.

If we are to measure the success of surrogacy regulation on the amount of judicial discretion that has been applied to it, then the 2008 Act has not been very successful at all. The requirements for a parental order to be granted are laid out in s54 and s54A of the 2008 Act and include, for example, that the application must be made within 6 months of the child’s birth, that the child’s home must be with the applicant(s) and that the gametes of at least one of the applicant’s must have been used in the creation of the embryo. However, many of these are regularly disregarded, with the courts taking a liberal and purposive approach. For example, s54(3), which states the time limit of six months, has been “vigorously dispatched”, and there are a number of English cases where these orders are granted far beyond this statutory time limit.[ii] Furthermore, S54(8) states that no money can be paid other than “expenses reasonably incurred”, but there are again numerous English cases where parental orders have been granted despite significant sums of money being paid to the surrogate.[iii]

Until last year, Scotland had in fact never had any surrogacy cases reach our courts, and therefore there was a degree of uncertainty about whether or not the Scottish courts would apply the same level of judicial discretion as those in England. However, in 2024, not one but two cases came along. Both of these posed a challenge to the s54 parental order requirements - the applications were made out with the 6-month time limit, in one case the petitioners had separated and in the other one of the petitioners had died. However, the cases ultimately demonstrated that the Scottish courts would follow the purposive approach applied by those in England, reaffirming the position that the current law is not fit for purpose given the regular requirement to disregard various provisions.

In light of the challenges with the current law, the Scottish Law Commission and the Law Commission of England and Wales jointly published recommendations for reform in 2023. These reforms, if given effect, would represent a significant change to the current law. The recommendations include establishing a ‘New Pathway’ whereby the intended parents would be able to be the legal parents from the moment of birth, the creation of Regulated Surrogacy Organisations and clarification on allowable payments.

A full analysis of these proposals is beyond the scope of this blog, however it was hoped that these recommendations would draw public and legislative attention to this matter and ultimately result in reform.

 

A call for action

The UK Government’s response to the Joint Law Commission’s proposals for reform states that the Government does “not intend to put forward these legislative proposals at this time.” It is disappointing that the Government does not intend to tackle this issue, particularly considering the significant legislative attention surrogacy has garnered elsewhere, and the accepted challenges with the current UK law.

Surrogacy regulation affects the surrogate (and any partner), the intended parents and the child. It therefore deserves to be prioritised on the parliamentary calendar, and for reforms to be made which prioritise the best interests of those involved.

[i] Katherine Wade, 'The regulation of surrogacy: a children's rights perspective' (2017) 29 Child Fam Law Q 113 1.

[ii] See for example, Re X (A Child) (Surrogacy: Time Limit) [2014] EWHC 3135 (fam).

[iii] See for example, Re C (Parental Order) [2013] EWHC 2413 (Fam)