With surrogacy becoming more common world wide, more and more individuals and couples are turning to international arrangements to build their families.

While international surrogacy offers a hopeful path to parenthood, it also brings with it a number of legal and immigration challenges, particularly for those in the UK. 

Nilah Ulhaq and Roisin Dugan answer some common questions surrounding international surrogacy in Scotland: Is it legal? Is the surrogate paid? What happens when the surrogate is not a British national?

Is Surrogacy Legal?

In Scotland, international surrogacy is legal if the surrogate mother does not receive any payment or other benefits from the intended parents. Surrogate mothers are, however, entitled to receive reasonable expenses related to their pregnancy from the intended parents. That might include medical expenses, maternity clothes or loss of earnings. 

Can you have a contract between the surrogate and intended parents? 

A surrogate mother and the intended parents can enter into a written surrogacy agreement. Such agreements can set out the agreed conception/birth arrangements, responsibilities of all individuals involved and other important points. These agreements would often be recommended by the international surrogacy agency to ensure everyone is on the same page. However, surrogacy agreements are not enforceable in Scotland.  

Who are the legal parents of the child?

In Scotland, the birth mother of a child (i.e. the surrogate) is automatically the child’s legal mother when the child is born. If the surrogate mother is married or in a civil partnership at the time of the fertility treatment – their spouse/partner will automatically be deemed the child’s legal father, unless he did not consent to the treatment. 

To change the child’s legal parents – an application must be made to the court by the intended parents after the child is born. Our family law team can guide you through that process. 

Who are the legal parents of the child under nationality law?

Under nationality law, a woman who gives birth to a child (i.e. the surrogate) is deemed to be the legal mother. The surrogate’s spouse is deemed to be the legal father, however if the surrogate is unmarried then the biological father is deemed to be the legal father.

Who is a parent under the Immigration Rules?

The immigration position is slightly different to the family law and nationality law stance. Biological parents are also recognised as parents under immigration law, as well as the following individuals:

1. Intended father who is the biological father;
2. Intended mother who is the biological mother;
3. Surrogate mother until making of a parental order;
4. Surrogate mother’s spouse / civil partner until making of a parental order;

After making of parental order only: intended parent who is not the biological parent.

When is a surrogate-born child automatically British?

Surrogate-born children can automatically obtain British citizenship at birth if they are born in the UK and either of their legal parents are British citizens, or if they are born outside the UK and either of their legal parents are British citizens other than by descent. In addition, a child will automatically obtain British citizenship upon the making of a parental order, if one of the intended parents is British and the parents are habitually resident in the UK.

When can a surrogate-born child register to become British?

If a surrogate-born child is not automatically a British citizen, they may be able to register to become one. Under section 3(1) of the British Nationality Act 1981, the Secretary of State has discretion to register any child as British while they are a minor, irrespective of where they were born. The Home Office guidance, ‘Registration as a British citizen: children’ sets out how discretion should be exercised and expressly covers three scenarios related to surrogacy: 

1. British man is biological father of the child, but surrogate mother is married; 
2. British man is not biological father; 
3. Intended mother is British.

What happens if a surrogate-born child is not British?

If a surrogate-born child does not qualify for British citizenship by automatic acquisition or registration, and the child is outside the UK, the child’s parents can make an application for entry clearance under the Immigration Rules to bring the child to the UK. There are several routes available, and our team of immigration experts can help to establish the most suitable route for your family.

Get in touch

If you are considering having a child through international surrogacy, we would strongly encourage you to take legal advice at the start of the process. Our experienced family law team and immigration team can guide you through this exciting chapter step by step.  

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