Pathways To Parenthood In Scotland: The Importance Of Legal Parentage And An Accurate Birth Certificate

Starting a family is an exciting time. There is much to think about for ‘parents to be’: baby names, timings of parental leave, the decoration plans for the nursery or bedroom, financial budgeting, reserving a nursery or school place.

Family formation in Scotland increasingly reflects the breadth of modern life. For some clients, parenthood follows conception and birth within an established relationship. For others, the route may involve surrogacy, adoption, donor conception or artificial insemination. Each pathway can be deeply personal but for those contemplating a non-traditional route into parenthood, obtaining early, clear and thorough legal advice can be crucial. Biological parentage, gestational parentage and legal parentage may all point in different directions.

For family practitioners, the key questions are: who are the child’s legal parents at birth; who holds parental responsibilities and parental rights for the child under the Children (Scotland) Act 1995; is an order, consent or registration required to alter or evidence that status; and does the child’s birth entry accurately reflect the intended legal position?

Brodies Family Law Team are regularly instructed in relation to the varied pathways to parenthood and would be delighted to assist clients at any stage of the process.

Surrogacy

Surrogacy is an arrangement in which a woman carries and gives birth to a child for another person or couple, usually referred to as the intended parent or intended parents. It may be traditional surrogacy (where the surrogate’s own egg is used), or gestational surrogacy (where an embryo is created using the intended parents’ or donor gametes and the surrogate has no genetic link). Under the Human Fertilisation and Embryology Act 2008, the woman who carries the child is the legal mother at birth. If she is married or in a civil partnership, her spouse or civil partner will usually be recognised as the child’s second legal parent.

It is important to note that the intended parent or parents initially have no legal rights in respect of the child. The intended parent or parents must apply for a Parental Order to have legal parentage formally transferred to them from the surrogate (and any spouse/civil partner of hers). A Parental Order application is made through the court and can only be made after the child is six weeks of age (although the process itself may take several months).

This creates a somewhat precarious situation where the intended parents may have assumed day to day care of the child straight away following the birth but have not yet become the child’s legal parents. This may prevent the intended parents from making important legal decisions regarding the child in the short term (e.g. the surrogate’s consent may be required for the child to receive medical care). Therefore, it can be useful for the intentions and expectations of all parties to the surrogacy arrangement to be clearly recorded in a surrogacy agreement, albeit they are not enforceable in the UK.

Also, as it is illegal to enter into a commercial surrogacy arrangement in the UK, any expenses in a surrogacy arrangement must be restricted to only those that are 'reasonable'.

When considering an application for a Parental Order, the court must regard the welfare of the child as the paramount consideration. Crucially, the consent of the surrogate must be provided to allow a Parental Order to be made. The surrogate’s consent must be unconditional, informed and freely given. In the absence of such consent, the Parental Order cannot be granted. An application for a parental order should be made before the child is six months old, however the court has considered late applications where there has been a reasonable justification for the delay and the child’s welfare requires the application to proceed.

Adoption

Once an adoption order is made under the Adoption and Children (Scotland) Act 2007, the adopters become the child’s legal parents for all purposes and the birth parents’ parental responsibilities and rights are extinguished, subject to any continuing contact arrangements. The consent of birth parents to the adoption is generally required unless dispensed with on statutory grounds.

Prospective adopters will proceed through a local authority or registered adoption agency, with assessment, approval, matching and reporting stages taking place before the court is asked to make an adoption order. The sheriff or judge can only make the order if they are satisfied that the proposed adoption will "safeguard and promote the child's welfare throughout their life."

We are regularly instructed by individuals to act in adoption cases and have close links with local authorities throughout Scotland.

Artificial insemination and assisted reproduction

The legal consequences of artificial insemination and assisted reproduction require close analysis of the Human Fertilisation and Embryology Act 2008. It deals with all aspects of assisted reproductions, for both heterosexual and same sex couples.

The birth mother is the legal mother, irrespective of genetic connection. The identity of the father or second female parent depends on the relationship status of the birth mother. If she was married or in a civil partnership at the time the sperm (or sperm and eggs if donor eggs are being used) is placed inside her, her spouse or civil partner is considered to be the other parent provided they consented to the treatment taking place.

If the birth mother is unmarried or not in a civil partnership, determining the other parent can be more complex and requires a degree of cooperation from the birth mother and the other intended parent (if there is to be one).

For those embarking on this particular pathway, early legal advice, clear boundaries and mutual understanding between those involved are key. Advising clients to enter into a ‘pre-conception agreement’ can help to regulate matters and set out each party’s respective role in relation to the child, however, they are not legally binding.

Why accurate birth registration matters

A child’s birth certificate is more than an administrative record: it is the primary practical means of evidencing legal parentage. It will commonly be relied on by schools, health providers, passport authorities, financial institutions and, later, the child themselves. Where birth registration does not reflect intended legal parentage, families may face uncertainty at the point of decision-making, travel, medical treatment or separation. In surrogacy, the original birth entry will usually identify the surrogate, and potentially her spouse or civil partner, until a parental order is granted and the appropriate re-registration takes place. In adoption, the order creates an entry in the Adopted Children’s Register – which is not publicly accessible. This has the effect of creating a new birth record which replaces the child’s original one in the register of births. It will list the child’s adoptive parents as their legal parents and any change to the child’s name provided for in the adoption order. In assisted reproduction, properly completed consent forms and accurate registration can prevent later disputes about whether a partner, donor or intended parent is legally responsible for the child.

The consequences of legal parentage are significant. Legal parents normally hold PRRs, including the responsibility to safeguard and promote the child’s health, development and welfare, and rights relating to residence, contact and legal representation. Legal parenthood can also determine liability for child maintenance. Succession consequences are equally important. If parentage is wrongly recorded, disputed or never formally transferred, the child’s entitlement may be vulnerable to challenge, with scope for delay, expense and distress in executry or contentious succession contexts.

For a variety of reasons, couples or individuals may consider pathways to parenthood which start, or end, furth the UK. Explanation about international adoption or surrogacy is available here.

Practical points for lawyers

The practical advice is to address legal parentage prospectively rather than remedially, where possible. For surrogacy clients, we can advise on the non-enforceability of surrogacy agreements, the limits on commercial payments, the evidence required for a parental order, and the roles of the court-appointed curator ad litem and reporting officer.

In donor conception and artificial insemination, particular care should be taken over relationship status, licensed-clinic treatment, HFEA consent forms, withdrawals of consent, and the distinction between known donation and clinic-regulated donation.

We are hosting an online seminar on Wednesday 7 October (10am – 12.30pm) on international child abduction and a surrogacy case law update. Further details and the sign up link can be found here.

Conclusion

Our family team regularly assist clients across each of these pathways, helping them to start or grow their family. We have experience of advising individuals, couples and families to navigate the associated legal, procedural and practical issues. Early advice can be particularly valuable in ensuring that intended arrangements are properly documented, that applications are made at the correct stage, and that the child’s legal parentage is secured and accurately reflected as soon as possible.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.