David Clarke interviews Turcan Connell Divorce and Family Law Partner, Gillian Crandles on surrogacy laws in Scotland, at Princes Exchange, 1 Earl Grey Street, Edinburgh, EH3 9EE.

Gillian discusses the pertinent issue of surrogacy laws in Scotland.

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DAVID CLARKE

Hello and welcome to the Turcan Connell video cast on family law. I'm David Clarke and I'm here with Gillian Crandles and today we're going to be talking about surrogacy. Gillian, what is surrogacy? We've heard a bit about it in the press, is it legal in Scotland?

GILLIAN CRANDLES

Yes, David thanks, yes to answer your question surrogacy is legal in Scotland. It might be helpful if I just tell you a little bit more about it and what it involves. A surrogacy arrangement is where a birth mother agrees to carry a child for what we in legal jargon call the commissioning couple, the couple who are going to bring up the baby as their own. An arrangement is entered into where the birth mother will carry this child, at the end of the day the baby's born, certain legal procedures have to be got through and then the baby becomes that couple's child and the birth mother's parental rights are then terminated at that point. The would be parents don't have any legal status as parents until they have applied to the court for what we call a parenting order, so until that has been granted the birth mother is the mother of the child, her husband or civil partner would be the other parent of the child and that carries on until we get to the stage of this parenting order being granted. It's very important to apply for that within six months of the birth, but after six weeks of the birth because the birth mother needs to give consent and her consent will be invalid if it's given within six weeks of birth. That brings us onto quite an important point. She can change her mind up until any point before the parenting order is granted, so it really can be an emotional rollercoaster for all involved for obvious reasons, but because of the importance of the matter there's no way that somebody could be forced to give up these rights or anything else. We need to have a surrogacy arrangement in place, surrogacy cannot be for commercial gain, so we can pay expenses but we can't pay a fee for giving the baby over or anything like that. The mother's consent has to be granted and this parenting order has to be granted, and at that point the parental rights will change from being the birth mother to being the commissioning couple who will then bring up baby as their own child.

DAVID CLARKE 

You identified a key point there, this is not like adoption, you say it has to be a couple that commissions this, it can't be a single person, that's right is it?

GILLIAN CRANDLES 

Exactly, which is really just something that's out of sync in terms of the legislation because adoption now can be applied for and granted to a single person, a married couple, a cohabiting couple, a civil partnership; the same is true for surrogacy but for the single person. A single person cannot apply to have a surrogate child carried for them.

DAVID CLARKE 

And the other interesting issue I suppose for this is that it doesn't just take place in Scotland does it, a lot of the time we're talking about couples going abroad and finding this birth mother to do this...

GILLIAN CRANDLES 

Absolutely.

DAVID CLARKE 

How does that work?

GILLIAN CRANDLES 

It's much more common for surrogacies to involve another country than to be a completely domestic arrangement here. So India is a very common country for surrogate mothers, some states in the US, the Ukraine, and it's very important to take foreign legal advice as well as UK Scottish or English advice as the case may be, the laws differ obviously from country to country. So for example in India as soon as the baby is born the commissioning couple can be named on the birth certificate and, for Indian legal purposes, they are the parents of that child. That is not the case here. They still have to come home, they still have to go through this parenting order application because otherwise they will not have legal status as parents in this country and in our experience it's very common for the Indian surrogate mother to disappear after the event has taken place. She's given birth, she's given over the baby, she doesn't want to know anymore, so we've got no birth mother traceable here and we've got this couple who think they're the baby's parents but actually in the eyes of a law they're not at all. So we've got to go through that parental order application. But you're quite right to highlight that, it's very important to take immigration advice for example and also just foreign legal advice in whatever state you're considering going through this arrangement in.

DAVID CLARKE 

But I suppose the essential thing is that the authorities, it's child focused, it's putting the protection of the child presumably at the centre of this?

GILLIAN CRANDLES

Absolutely. All laws in this sort of area are very much child centred, focusing on the rights of the child but also, as I've highlighted, the rights of all parties involved, the birth mother cannot be coerced or forced to give up her right, she can change her mind at any time. Certain conditions will have to be met before the court will be satisfied that a parenting order can be granted, so no money can change hands other than reasonable expenses as I've mentioned, the child needs to be living in family with the couple, the mother has to give consent unless she cannot be found in which case there are exceptions that can be made, and then yes that child is then, you know, essentially and hopefully brought up in family with his or her new parents.

DAVID CLARKE

Thank you Gillian. So for more information on how Turcan Connell can help you through the sensitive area of family law, please go to the website turcanconnell.com or check us out on Twitter and LinkedIn.