Surrogacy ‘must be highly regulated’, says Faculty



Protecting women from exploitation must be a key objective of plans to reform the law on surrogacy, the Faculty of Advocates has said.

Proposals for a new pathway to legal parenthood have been included in a joint consultation paper by the Scottish Law Commission and the Law Commission of England and Wales.

At the moment, intended parents must make an application to the court after the child has been born, and do not become legal parents until the court grants them a parental order. The process can take many months.

Under the reforms, intended parents would become legal parents when the child is born, subject to the surrogate having a right to object for a short period after the birth.

In a response to the consultation, the Faculty said the pathway was a radical proposal, but it had to be accepted that surrogacy was now a fact of life.

“Provision must be made, and the welfare of the child must be the paramount consideration. The proposal has the benefit of avoiding a period when the child is living with persons who regard themselves as parents, but have no legal status as such,” the Faculty stated.

“The second consideration is that surrogates must be protected from exploitation. We recognise that well-considered domestic arrangements will satisfy these objectives better than restrictive provisions that drive would-be parents overseas…We are aware of disquiet over coercion of surrogates in some overseas situations… We are concerned that there should be no exploitation and trafficking of women.

“We would support robust oversight of the new pathway…We do not anticipate that this would require the level of scrutiny involved in the adoption process, as surrogacy, unlike adoption, does not involve the placement of unrelated children who may already have difficulties, but it would provide a check on cases where there may be cause for concern. For example, it should show up cases where there is exploitation of a surrogate, or clear inability on the part of the intended parents to provide a suitable home for a child.

“Surrogacy must be highly regulated. Only regulated surrogacy organisations should be able to offer services. Any organisation that is not regulated and that offers surrogacy services must be considered illegal.”

The Faculty supported a requirement for the surrogate and intended parents to take independent legal advice on the effect of the law and of entering into the agreement, before the agreement was signed.



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