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Scotland Act 1998

First reservation

This reserves surrogacy arrangements, as defined by the Surrogacy Arrangements Act 1985, including the subject-matter of the 1985 Act.

The 1985 Act defines surrogacy arrangements by reference to a ‘surrogate mother’ who is a woman who carries a child in pursuance of an arrangement made before she began to carry the child and made with a view to that child being handed over to, and the parental rights being exercised by, another person.  The arrangement is a surrogacy arrangement if, were a woman to whom the arrangement relates to carry a child in pursuance of it, she would be a surrogate mother.

The Act makes provision prohibiting third parties from initiating or negotiating any surrogacy arrangements on a commercial basis, receiving any payments from the surrogate mother or the person for whom she is carrying the child and advertising in connection with surrogacy arrangements.

The Act does not however deal with the legality under the common law of surrogacy arrangements.  It is not an offence in the criminal law of Scotland to enter into a surrogacy arrangement and it is not an offence under the common law or the 1985 Act for persons to enter into a private arrangement.  Section 36(1) of the Human Fertilisation and Embryology Act 1990 amended the 1985 Act to the effect that no surrogacy arrangement is enforceable and the 1990 Act also makes provision as to the parentage of children born as the result of surrogacy arrangements.

The Scottish Parliament is not able to legislate in respect of any matter relating to surrogacy arrangements within the meaning of the 1985 Act, including the legality of surrogacy arrangements for the purposes of the criminal law or the enforceability of any such arrangements for the purposes of the civil law nor will it be able to amend the provisions of the 1985 Act, except as permitted by paragraph 3 of Schedule 4.

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