Review of the Gender Recognition Act 2004: consultation

Annex F – Parental Responsibilities And Rights

1.Part 1 of The Children (Scotland) Act 1995 sets out:

If you have parental responsibilities for a child, you are expected to fulfill certain legal duties in respect of looking after them. You are required to:

• safeguard their health, development and welfare;
• give them direction and guidance in line with their stage of development;
• maintain personal relations and direct contact with the child on a regular basis, where they are not living with you; and
• act as their legal representative.

2.Parental rights enable you to fulfill these duties. If you have parental rights then you are entitled to:

• have a child live with you or otherwise regulate their residence;
• control, direct or guide their upbringing, in a manner appropriate to their stage of development, for example, deciding how the child should be educated;
• maintain personal relations and direct contact with them on a regular basis if they are not living with you; and
• act as the child’s legal representative.

3. A child’s mother automatically has PRRs in relation to their child.

4.A father will have PRRs if:

• when the child was conceived the father was married to the child’s mother or subsequently marries them;
• the mother and father jointly register the child’s birth (this applies to births registered on or after 4 May 2006);
• the mother and father complete and register a Parental Responsibilities and Rights Agreement; or
• a court so orders.

5. Others can ask the court for PRRs to be given to them.

6.One example is a parental order made by a court under section 54 of the Human Fertilisation and Embryology Act 2008. In this case, the intended parent or parents in a surrogacy arrangement seek to take over PRRs from the child’s legal parent(s).

7.The surrogate mother is automatically considered as the legal parent of a child even where she is not genetically related to them. The surrogate mother’s husband is also automatically considered to be the legal parent of a surrogate baby where he was married to the surrogate mother at the time of her artificial insemination or when the embryo or sperm and eggs were placed in her. When a parental order is granted to the intending parents, (those who commissioned the surrogacy arrangement), the surrogate mother and father stop having PRRs for the child. A parental order made by a Scottish court is registered in the Parental Order Register maintained by the Registrar General for Scotland.