The Parental Orders (Human Fertilisation and Embryology) (Scotland) Regulations 1994

Explanatory Note

(This note is not part of the Regulations)

The Regulations apply, with modifications, certain provisions of the Adoption (Scotland) Act 1978 (“the 1978 Act”) to give effect to the arrangements by which a parental order may be obtained under section 30 of the Human Fertilisation and Embryology Act 1990 in Scotland. Such an order may be granted by a court in respect of a child who is born as a result of a surrogacy arrangement and who is genetically related to at least one of the applicants for the order. The applicants must be husband and wife.

The relevant provisions of the 1978 Act are set out in Schedule 1 to the Regulations.

Section 6 of that Act imposes a duty on the court to have regard to the welfare of the child in reaching a decision on the making of the order, and section 12 provides for the parental order to vest parental rights and duties in the husband and wife.

Sections 26, 27 and 29 provide for certain safeguards for the care of the child in certain situations and make provision to prevent the removal of the child from the applicants while an application is pending.

The legal status conferred by the parental order and as affecting the child in respect of certain legal relationships is dealt with in sections 39 and 41.

Section 45 of and Schedule 1 to the 1978 Act provide for the registration of parental orders with the Registrar General for Scotland. There is also a requirement on the Registrar General to advise a person who is the subject of a parental order who searches the registers that counselling services are available.

Certain procedural and other aspects in connection with the application for a parental order are dealt with in sections 55 and 56. Sections 57 and 58 provide for court proceedings to be held in private and for the appointment of acurator ad litemand reporting officer. Their functions and duties are set out in rules of court to be made by Act of Sederunt to be in force on the same date as the Regulations.

Schedule 2 to the Regulations provides consequentially for references in certain other enactments to adoption, adopted child and similar expressions in connection with adoption to be read as references to parental orders or applications for such orders, as appropriate.

The Scottish Office Home and Health Department has prepared Guidance on the Regulations which include the text of the provisions of the 1978 Act as applied and modified by these Regulations. Copies may be obtained free of charge from the Scottish Office, Room 29E, St. Andrew’s House, Edinburgh EH1 3DG.