Surrogacy

How do I acquire parental rights and responsibilities?

The prospective parents or applicants need to apply to the appropriate court (in Scotland it is the Court of Session or the Sheriff Court in the place where the child resides) to make an application for an order to provide that the child is treated in law as their child. A point to note is that if you are living in Scotland you need to apply to the Scottish courts even although surrogacy law is the same across the U.K. You also need to be quick. You need to raise within 6 months of birth.

The child must be living with the applicants at both the time of the application and the time of the making of the order, and one of the applicants must be domiciled in the United Kingdom. The court must be satisfied that the surrogate mother and anyone else who is a parent of the child but not one of the applicants freely consents to the making of the order.

No money or other benefit other than for reasonable expenses should be given or received by either of the applicants. Most importantly, the welfare of the child throughout its life must be the paramount consideration of the Court when considering an application. The definition of “ reasonable expenses” will differ depending on where the surrogate lives. To that end, you need to keep all receipts and agreements and it would also be good practice to obtain a letter/affidavit from your chosen agency confirming the “going rate” in their geographical area.

In Scotland, the court will appoint a Curator ad Litem to meet with the applicants and the baby and see them together in their family setting. This report will be an additional expense that will need to be factored in. The court will simply not grant an application without being satisfied that the child is being adequately cared for.

There will be at least two hearings before the judge and don’t be surprised if the judge wants both applicants to attend court personally for the final hearing.

In my experience, similar to adoption hearings, the judge wants to meet with the applicants in order to congratulate them. These hearings tend to be joyful occasions. In fact in my last case the babies came to court as well!