Navigating the parental order process in Scotland

Beverley Addison is a Senior Solicitor at BTO Solicitors LLP, based in Glasgow, Scotland. Beverley is an experienced family lawyer who has a specialist practice in Fertility Law & Family Law for Modern Families.

Becoming parents via surrogacy is such an exciting and life-changing time for everyone involved. As fertility law solicitors, our job is to help to make the complex law that surrounds surrogacy easier for Intended Parents to navigate, to make sure that you start your new family life off on the best possible foot.

Beverley Addison

In celebration of Surrogacy Week 2021, we have written this article to help explain how applying for a Parental Order in Scotland works and other top legal tips about going through surrogacy in Scotland. Although the Law itself is UK-wide, the practical aspects can be a little different north and south of the border. If you are in any doubt about your own situation, consult with a solicitor local to you.

Before the Birth

Before the baby is born, there are a couple of aspects that you will want to consider, to make sure that the law supports you and your family should something unfortunately happen during the surrogacy process.

The first of these, is making sure that both you and your surrogate have had independent legal advice. This, alongside putting together a Surrogacy Agreement with a not-for-profit agency and taking part in implications counselling, can ensure that everyone has an accurate understanding of each other’s expectations for the process, which is the most single important factor in stopping legal disputes arising at a later date. I always say that the more talking you can do with each other, the better, and having an opportunity to discuss the law and its implications with your own solicitor can give both parties peace of mind and help prevent any issues from cropping up later.

You should also make sure that both you, your partner if you have one, and the surrogate have updated Wills in place once you know that the surrogate is pregnant. This helps to make sure that the guardianship of the child is specified and that your child is able to inherit from your estate, should the worst unfortunately happen. Your Will should also make provision for the payment of the surrogate’s expenses from your estate, and you should also discuss and make sure that you have appropriate life insurance, so that everyone is taken care of.

After the Birth

After the baby is born, you can of course bring them home from the hospital as normal even though the Surrogate will remain the child’s legal mother until the Parental Order has been granted. By then your life will have changed dramatically, and you will be busy focusing on your new life as a parent!

The last piece of the puzzle after that is applying for your Parental Order.

In Scotland, this is done by applying to your local Sheriff Court by way of a Petition. In some cases, such as where you are stuck abroad following an International Surrogacy arrangement or you have a problem in your case, you may have to use the Court of Session in Edinburgh. Your solicitor will be able to advise you on which court is best for you.

The Petition is submitted to the appropriate Court alongside an Inventory of Productions which will contain all of the required evidence to show the court that you meet the 9 conditions required for the granting of a Parental Order. These are:

  • The child was born to a surrogate using a form of assisted reproduction;
  • If you are applying as a couple, you must be married, in a civil partnership or in an “enduring relationship”;
  • The genetic material of one of the intended parents has been used to create the embryo;
  • The application is made within 6 months of the date of the birth;
  • The child lives with the applicants at the time of the application and at the time when the order is made;
  • At the time of application and the time the order is made, either applicant (or both) are domiciled in a part of the UK;
  • Both applicants are at least 18 years old;
  • The surrogate and her spouse or civil partner, if there is one, has consented and they must have given their consent in the required form at least 6 weeks after the birth (the “cooling-off period”); and
  • The court must be satisfied that no money or other benefit, other than “expenses reasonably incurred” has been paid either for the surrogacy itself or for arranging the agreement.

Once this has been submitted to the court, the Sheriff will consider the Petition and, assuming everything looks ok on the face of it, will appoint a Reporter and Curator ad Litem to assess the application and write a report for the court about whether the case meets the criteria for a Parental Order being granted. In Scotland, both roles will be done by the same person who will be appointed from the Child Welfare Reporter’s register.

Once this person is appointed, they will come to meet with you in your home and will consider the papers you have submitted to the court. They might also wish to meet or speak to the Surrogate. They will let you know what they need in order to prepare their report. Once they have done their initial investigations, they will write a report for the Sheriff that you will get to see. The report will list out all of the criteria for the granting of a Parental Order and will tell the Sheriff whether your case meets each criteria. This report will be lodged with the Court and the Sheriff will assign a Hearing to take place.

At that Hearing, if there are any remaining question marks about your case, you or your solicitor can address these with the Sheriff. If necessary, more evidence can be lodged ahead of that Hearing in support of your application. Assuming that there are no issues, the Sheriff will then grant your Parental Order and direct that your child’s Birth Certificate be changed to one from the Parental Orders register. This is the point at which you will become your child’s legal parents and the legal rights of the Surrogate will be extinguished.

The legal aspects of the surrogacy process can be quite complex and so if you are in any doubt you should consult with a solicitor with experience of applying for Parental Orders, particularly if your case is unusual or you don’t meet one of the criteria. This will keep you on the right course and ensure that you can focus on the important part, becoming a parent!

At BTO, we have a Free Fertility Law Advice Service where we can answer any initial questions that you have before you embark on the surrogacy journey.

All you need to do is email your question to us at fertilitylaw@bto.co.uk and we guarantee a response from one of our fertility-specialist solicitors within 7 days or less.