A legal game of happy families

However, for families who cannot have the children they long for, it can be traumatic and incredibly isolating. It is estimated around 3.5 million people in the UK are dealing with fertility issues.

National Fertility Awareness Week runs from today to Friday, to highlight fertility issues, reduce stigma and support those affected by infertility.

Infertility is only one reason people seek expert legal advice prior to the creation of modern families. Societal changes, whether the increase in same-sex relationships or single people wishing to start their own families, are making this area of law more vital to the everyday lives of more people.

We are asked regularly to advise on alternative routes to parentage - surrogacy, donor conception, IVF or adoption. The parentage rules and legal steps couples and individuals need to take to have their families recognised in law can be complex and difficult to manage. Having an understanding of the law before embarking on your fertility journey is vital so you take the correct steps at the correct time to avoid being in a complicated or emotionally difficult position after the baby’s birth.

Current laws dealing with alternative routes to parentage are not without problems. In March 2023, the Scottish Law Commission (jointly, with the Law Commission of England and Wales) published a report on surrogacy, the effects of which we are still to see. The law needs to evolve to keep up with the continual changes in society, and advancement of medical technology. For example, treatment abroad is now commonplace for couples and individuals looking to conceive with assistance, as they look for inventive solutions to give them genetic and gestational parentage of their babies.

Those who choose to form their families as single parents are also recognised as being able to adopt as a single person or apply for a parental order following a surrogacy arrangement. It is important the consequences for legal parentage are fully understood, and legal advice is taken in advance.

In Scotland, the law on parentage in assisted reproduction is detailed in the Human Fertilisation and Embryology Act 2008. Identifying the legal parents of a child born through assisted reproduction depends on whether the artificial insemination took place at a registered fertility clinic or from a private arrangement.

Surrogacy is regulated by the Surrogacy Arrangements Act 1985 and the Human Fertilisation and Embryology Act 2008, the former being 40 years old. In that time, we have seen significant societal change and medical advancement directly relevant to the creation of modern families. The 1985 Act followed an arguably negative view of surrogacy at the time and set out a regime which tolerated surrogacy, at best. We have moved on considerably from this thinking. As a result, the problems with the current law have become more apparent. Those problems include that the current law recognises the surrogate mother and her husband (where she is married) as the legal parents despite the intention being that the surrogate mother will not be the person to raise the child following birth. It creates a risky period, filled with uncertainty, following the birth of the child.

We wait in anticipation for reform and a new pathway for surrogacy arrangements.

Linda Walker is a partner, Harper Macleod