Challenging Presumptions: Legal Parenthood and Surrogacy Arrangements

Abstract

As the law stands, provisions determining parenthood following surrogacy and other forms of assisted conception are inconsistent and reflect – intentionally or unintentionally – a perception that surrogacy is a troublesome, disruptive and less legitimate means of family formation than other methods. In arguing that the law regarding the award of legal parenthood following surrogacy arrangements should be reformulated to recognise pre-conception intentions and commitments to care, this article will attempt to provide an example of a way to iron out those inconsistencies, in part to ensure that some methods of family formation are not reinforced as being superior to others. It will argue that the recognition of the intention to parent should be used as a stable and consistent foundation for all parenthood status provisions in legislation governing assisted reproduction, in turn leading to a greater and easier recognition of ‘alternative’ family forms. It will also acknowledge that, with surrogacy, intention could be used as the basis of protective enforceable agreements between intending parents and surrogates.

Keywords: surrogacy, legal parenthood, assisted conception, assisted reproduction