Surrogacy- Parental Orders in Scotland. What is going on?

Many will have seen the positive press coverage today (such as here) around surrogacy and parental orders arising from the research carried out by Dr Kirsty Horsey at the University of Kent and My Surrogacy Journey. One issue highlighted in the coverage is the increasing number of parental orders registered in England and Wales, which have risen from 117 in 2011 to 413 in 2020.

This increase probably won’t come as a surprise to anyone with in interest in this area. There is generally much higher public awareness of, and sympathy towards, surrogacy as a route to parenthood now than there was even ten years ago.

What is perhaps more surprising is that, over the same period, the number of parental orders registered in Scotland has remained essentially static. In 2011, 15 parental orders were registered with the General Register Office for Scotland. In 2020, the figure was 9. In between these years, the figure has gone down as low as 5, but has never gone higher than 18.

Why would there be such a difference north and south of the border? After all, we operate essentially identical legal regimes for surrogacy.

For what it is worth, here are some quick musings on possible explanations for this seemingly strange disconnect:

1. Is the English position more geographically nuanced? Perhaps the position in England and Wales can’t be compared directly alongside Scotland. Is a substantial proportion of the increase in parental orders related specifically, for example, to metropolitan London, with the rest of England and Wales being more closely aligned with the trend in Scotland?
2. Are Scottish cases “leaking” south? This is an issue that I have spoken about and written on elsewhere before. Section 54 of The Human Fertilisation and Embryology Act 2008 requires that a court hearing an application be satisfied that the applicants are domiciled “in the United Kingdom”, rather than specifically in the particular constituent part hearing the application. Could it be that Scottish parents, particularly those engaged in an overseas surrogacy arrangements, are making applications for parental orders to the English courts? I have heard some limited anecdotal evidence that this might be the case, but am not aware of any research (for example looking at addresses of parents on orders granted) that might establish whether this is indeed happening, and if so whether at a level which distorts the picture to any appreciable extent.
3. Is there a statistical issue at play? Here I am most definitely out of my depth. I wonder whether anyone with a deeper understanding of statistics might be able to offer a view on whether the sample size in Scotland is simply too small, whether the data from GRO Scotland is in some way not directly comparable to the England and Wales data, or indeed another statistical issue is at play.
4. Is Scotland “just different”?  It seems instinctively hard to believe, but is there a cultural or demographic reason why there seems to have been no increase in surrogacy cases in Scotland over the last decade while England and Wales have seen such a large increase?

I must say I find the difference in trends quite perplexing and am not convinced that any of these theories offer an adequate explanation. If anyone can contribute any thoughts, I’d love to hear them. You can share your wisdom via @SKOsurrogacy on twitter.