Baby Factory Dad: Surrogacy in Scotland

It was recently reported that a court in Bangkok awarded paternity rights to a Japanese man, Mr Shigenta, over 13 babies he fathered (pre 2014) through Thai surrogate mothers, meaning that he could pursue custody (the closest equivalent in Scotland would be a Residence Orders) in respect of each ofthe children.

Mr Shigenta was first brought to the attention of the media in 2014 when it transpired that authorities were investigating him in relation to human trafficking. It is believed that he has fathered at least 16 surrogate children, and during a police raid in 2014 of his apartment in Bangkok he was found to have nine surrogate babies, nannies and a pregnant surrogate mother staying there. Reports also suggest that he may have fathered children in India and Ukraine. He previously was awarded custody of his three other children in 2015.

His lawyer explained that Mr Shigenta, (who also happens to be the son of an IT billionaire) simply wanted a large family. It appears that he may have paid between $9,300 and $12,500 to each of the surrogate mothers.

This followed the case of “Baby Gammy”, which also drew huge attention from the media in 2014. Gammy’s Thai surrogate mother alleged that he was abandoned by an Australian couple (the Farnells) after they found out he had down syndrome. The Farnells only took his twin sister back to Australia. The Farnells were later acquitted of abandonment, and were allowed to keep the twin sister, despite the fact that Mr Farnell was a convicted sex offender.

Thailand subsequently passed a law in early 2015 preventing foreigners from paying Thai women to be surrogates. Clearly, there are ethical issues to be considered when paying a woman for the use of her body. Commercial surrogacy remains an issue still rife in Eastern Europe and Asia.

Surrogacy in Scotland

As you might expect, the law in Scotland is much more advanced in relation to surrogate parentage. Commercial surrogacy is illegal.

In 1990, legislation was brought into effect which provided the courts with the power to grant a “parental order” in relation to a child born as a result of a surrogacy arrangement. Where a parental order is granted, the child will then be treated in law as the child of the couple who commissioned the surrogate mother to carry the child, and the couple are automatically granted Parental Rights and Responsibilities in relation to the child.

A parental order can only be granted if a surrogacy arrangement has been entered into. In the absence of a surrogacy arrangement, a couple would instead have to apply for alternative orders, such as an Adoption or Residence order. A surrogacy arrangement, briefly put, states that a woman agrees to carry a child with the intention of handing it over to another couple on its birth. It is common for the surrogate to be the biological mother, or for a donor egg and/or sperm to be used.

The law and procedure in relation to surrogacy is very similar to the law surrounding adoption. Indeed, the legislation which relates to surrogacy provides that much of the adoption legislation applies when an application is made for a parental order.

It will come as no surprise that there are many conditions which have to be satisfied before a parental order can be made, some of which can be briefly summarised as follows:

1 The order must be applied for as a couple (a married couple, civil partners, or a couple living as if there were married).

2 The child must be genetically related to one of the applicants.

3 The order must be applied for within six months of birth.

4 The woman who carried the child (and/or any other parent of the child (including the partner of the woman who carried the child)) must freely consent to the order, and the woman who carried the child cannot give this consent until 6 weeks after the birth of the child. Unlike adoptions, there is no mechanism for dispensing with the consent (unless that person cannot be found or does not have the capacity to give consent).

5  No money or other benefit (apart from reasonably incurred expenses) can be given for the consideration of the order;

a. the agreement of any person to the order;

b. the handing over of the child; or

c. for the making of any arrangement with a view to the making of the order.

Unless authorised by the court.

It follows that, whilst a surrogacy agreement is essential to a parental order being granted, they are not enforceable, as the consent to the order is required following the birth of the child. It is of the upmost importance that the surrogacy agreement is prepared by a legal professional.

What that means at its most extreme, and what many potential parents considering surrogacy as an option may not realise until further down the line, is that a couple could in theory donate an egg and sperm, such that the child born to the surrogate is wholly their biological child and not the biological child of the surrogate, but the surrogate would still be the legal mother, and could prevent the couple from obtaining parental rights and responsibilities in respect of their biological child.

This is only a brief summary of the law. If you would like to discuss surrogacy, adoption, or other orders in relation to children, do not hesitate to contact a member of our team.#

The information and opinions contained in this blog are for information only. They are not intended to constitute advice and should not be relied upon or considered as a replacement for advice. Before acting on any of the information contained in this blog, please seek specific advice from Gilson Gray.