Legal parenthood in surrogacy: shifting the focus to the surrogate’s negative intention

Abstract

ABSTRACT This paper examines how legal parenthood should be allocated in surrogacy under English law. I argue that we need to shift the focus of the discussion to the surrogate’s negative intention to not be a parent as the key to move away from the current gestational model of motherhood. This has three main benefits that are explored in this paper. First, it respects surrogates’ voices and construes them in terms of their autonomy and agency, rather than solely in terms of their vulnerability. Second, it provides a conceptually robust basis for recognising legal parenthood of the intended parents at birth, since the surrogate’s negative intention is construed as the trigger for the application of specialised rules on parenthood. Third, it serves as a guiding principle in developing appropriate and comprehensive protections for the surrogate, including recognising the intended parents as the legal parents at birth, the parameters of the surrogate’s right to withdraw consent, and further safeguarding requirements and checks before entering into a surrogacy agreement. Overall, focusing on the surrogate’s negative intention allows us to view surrogacy in a nuanced way, away from false dichotomies, and contributes to a more compelling case in favour of actively facilitating surrogacy.