Surrogacy law must prevent exploitation, and secure child welfare: Faculty

Protecting women from exploitation, and the welfare of the children concerned, must be the focus of plans to reform the law on surrogacy, the Faculty of Advocates said today.

The comments come in Faculty's response to a joint consultation paper by the Scottish Law Commission and the Law Commission for England & 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 Commissions' proposed 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.

Faculty describes the proposal as "radical", but says it has to be accepted that surrogacy is 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,” it states.

"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."

The response adds: "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."

Faculty also supports 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 is signed.

Click here to view the full response.