Who's bringing up baby: Developing a framework for the transfer of legal parenthood in surrogacy arrangements

<p>Surrogacy arrangements defy traditional definitions of parenthood and pose challenges in determining who should be recognised as legal parents. This is exacerbated by the use of assisted reproductive techniques which allow for the separation of genetic, gestational and intentional parenthood, creating questions about the comparative value of these contributions. This paper identifies that New Zealand legislation dealing with parentage in surrogacy, primarily the Adoption Act 1955 and the Status of Children Act 1969, never contemplated surrogacy arrangements and requires strained interpretation to avoid perverse results. The paper critiques two proposals for reform: the Law Commission’s recommendations in the 2005 New Issues in Legal Parenthood Report, and the framework suggested in the Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill. This paper concludes that the proposed Amendment Bill shows promise, however should incorporate the Law Commission’s 2005 recommendations to provide a truly comprehensive framework. This framework should focus on giving effect to the intentions of parties to a surrogacy arrangement, while ensuring the interests of the surrogate are protected and the arrangement is carried out in accordance with recognised ethical principles. It is additionally important that children have an opportunity to know their genetic and/or biological background.</p>

Who's bringing up baby: Developing a framework for the transfer of legal parenthood in surrogacy arrangements

<p>Surrogacy arrangements defy traditional definitions of parenthood and pose challenges in determining who should be recognised as legal parents. This is exacerbated by the use of assisted reproductive techniques which allow for the separation of genetic, gestational and intentional parenthood, creating questions about the comparative value of these contributions. This paper identifies that New Zealand legislation dealing with parentage in surrogacy, primarily the Adoption Act 1955 and the Status of Children Act 1969, never contemplated surrogacy arrangements and requires strained interpretation to avoid perverse results. The paper critiques two proposals for reform: the Law Commission’s recommendations in the 2005 New Issues in Legal Parenthood Report, and the framework suggested in the Care of Children (Adoption and Surrogacy Law Reform) Amendment Bill. This paper concludes that the proposed Amendment Bill shows promise, however should incorporate the Law Commission’s 2005 recommendations to provide a truly comprehensive framework. This framework should focus on giving effect to the intentions of parties to a surrogacy arrangement, while ensuring the interests of the surrogate are protected and the arrangement is carried out in accordance with recognised ethical principles. It is additionally important that children have an opportunity to know their genetic and/or biological background.</p>

“My emotions on the backseat”. Heterosexually partnered men’s experiences of becoming fathers through surrogacy

Surrogacy is a family building option for people unable to conceive or carry a pregnancy. In heterosexual couples seeking surrogacy, a woman who is not the intended father’s partner, facilitates this pregnancy. Whilst normative discourses reinforced by contemporary healthcare policies highlight the importance of involving fathers throughout pregnancy, little is known about heterosexually partnered men’s experiences of surrogacy. This qualitative study explores how surrogacy shapes men’s construction of their father identity and parenting expectations. Drawing on interviews with ten men (nine self-identifying as white and one as white-Asian; all employed in professional occupations) during or after their surrogacy arrangement, we explore their transition to fatherhood, interactions in the pregnancy, and relationship with the surrogate and their intimate partner. This is the first study explicitly focusing on heterosexually-partnered men’s experiences of surrogacy. The findings provide new insights into this unique form of family building, expanding understanding of men’s role preference and level of involvement in a triad surrogacy relationship.

One step forward or one step back? Autonomy, agency and surrogates in the Indian Surrogacy (Regulation) Bill 2019

The Indian government has recently introduced legislation to regulate ‘altruistic’ surrogacy while banning ‘commercial’ surrogacy amidst the criticism that India has become the ‘baby factory’. In the past decade, academic discourse has raised socioethical and legal issues that surfaced in the unrestricted transnational commercial-surrogacy industry. Most of the literature and ethnographic studies centred on the issues of informed consent, autonomy, decision-making and exploitation. With the proposed legislation, the Indian government has shown its will to regulate surrogacy, including the medical intermediaries as well as the contract between the intending parents and the surrogate mother-to-be. The present paper addresses the legal and socioethical context in which India introduced the Surrogacy (Regulation) Bill 2019. It examines the extent to which the proposed law responds to the legal challenges and socioethical concerns that surfaced in the course of unregulated transnational commercial-surrogacy arrangements in India. It argues that, even though the proposed legislation addresses and responds to some of the legal and ethical concerns such as informed consent and legal parentage, it stops short of ensuring the welfare and well-being of the surrogate. Second, the legal certainty of parentage and the child's rights comes at the cost of the physical and psychological well-being of the surrogate. Finally, it argues that, by presupposing the surrogate as an autonomous agent and yet imposing the requirement of marriage, the Bill overlooks the sociocultural realities of patriarchal hierarchies entrenched in Indian society – that, in its conception of ‘family’, the focus on the ‘traditional’ family not only presents a narrow view of the heteronormative family and perpetuates the patriarchal notions of gender roles, but also fails to take into consideration maternal pluralism in surrogacy arrangements, undermines the modern family and, above all, discriminates against the single person's and lesbian, gay, bisexual, transgender, and queer (LGBTQ) communities’ right to found a family. Since many countries that served as centres for international commercial-surrogacy arrangement (such as Cambodia, Thailand and Nepal) have recently started to take steps to prohibit or limit transnational surrogacy arrangements, the analysis of Indian law in the present paper will provide a useful context within which these countries can effectively regulate surrogacy while safeguarding the surrogate's rights and interests.

Mennesson v France and Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-Child Relationship between a Child Born through a Gestational Surrogacy Arrangement Abroad and the Intended Mother

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Protocol No. 16 to the Convention for the Protection of Human Rights and Fundamental Freedoms and Advisory Opinion Concerning the Recognition in Domestic Law of a Legal Parent-child Relationship Between a Child Born Through a Gestational Surrogacy Arrangement Abroad and the Intended Mother (Eur. Ct. H.R.)

On April 14, 2018, Protocol 16 to the European Convention for the Protection of Human Rights and Fundamental Freedoms received sufficient ratifications and entered into force on August 1, 2018. The Protocol, for the first time, enabled the European Court of Human Rights (ECtHR) to provide advisory opinions for the states that ratified the Protocol.

Removing Harmful Options: The Law and Ethics of International Commercial Surrogacy

Focusing on the UK as a case study, this article argues that having the choice to enter into an international commercial surrogacy arrangement can be harmful, but that neither legalisation nor punitive restriction offers an adequate way to reduce this risk. Whether or not having certain options can harm individuals is central to current debates about the sale of organs. We assess and apply the arguments from that debate to international commercial surrogacy, showing that simply having the option to enter into a commercial surrogacy arrangement can harm potential vendors individually and collectively, particularly given its sexed dimension. We reject the argument that legalizing commercial surrogacy in the UK could reduce international exploitation. We also find that a punitive approach towards intended parents utilizing commercial rather than altruistic services is inappropriate. Drawing on challenges in the regulation of forced marriage and female genital cutting, we propose that international collaboration towards control of commercial surrogacy is a better strategy for preserving the delicate balancing of surrogate mothers’ protection and children’s welfare in UK law.

Conceptualizing Surrogacy as Work-Labour

Using ethnographic findings, this article reflects on Indian women engaged in commercial surrogacy for foreign and Indian couples and expands on the existing ideas of paid and unpaid employment by conceptualizing transnational commercial surrogacy in India. The latter is undertaken through a mapping of the meanings surrogates and intended couples make of their participation in the transnational commercial surrogacy arrangement. Here, ideas about motherhood, domesticity and contractual labour come together to create an understanding of the unique role of surrogates in the arrangement. While emerging research has aimed to conceptualize the surrogate’s contribution through differing theoretical understandings of work and labour, my ethnographic findings suggest that surrogacy and its linkages with paid work are more complex than conveyed by its researched connections with care work and/or sex work. Invoking established theorizing of sexualized care work and reproductive choice, I point to the need for a deeper engagement with the idea of work-labour itself. Within this wider conceptualization are social categories that mediate between commerce and intimacy—including that of the paid domestic worker. By using frames used to study paid domestic work in India and South Asia, I portray surrogacy and the commercial surrogate through notions of domesticity, family and intimacy paying particular attention to its linkages with paid work.