Cross-Border Surrogacy, Conflicts of Law, and Conceptions of Perosnhood
Abstract for ISA 2016
Samantha Ashenden, Birkbeck College, London
Practices of kinship are currently being re-written by reproductive technologies. In particular, the development of the practice of international surrogacy raises some difficult challenges for legal practice and for sociological theory. Different jurisdictions provide different rules for the recognition of parenthood. Children born as a result of cross-border surrogacy agreements may thus be deemed stateless and parentless because of divergent designations of parenthood, on one hand in the state where they have been commissioned and on the other hand in their commissioning parents’ home state. UK law, for example, determines that the mother of a child is the woman who gave birth to the child (mater sempa certa); there is no enforceability of pre-birth agreements between surrogate mothers and intended parents. Thus children commissioned by UK couples with surrogates in Ukraine and India, where surrogacy contracts are enforceable, have turned up at the UK border stateless and parentless. Similar cases have arisen in Belgium, France, Germany and Italy.
This paper takes a number of recent examples of such cases and traces the ways in which courts have sought to make judgments of parenthood. Examining such examples shows us in detail the importance of sociology of law approaches. Such cases reveal that beneath conflicts of laws surrounding international surrogacy are markedly different conceptions of personhood and filiation that lend intractability to the conflicts at hand. In these conflicts, the very idea of personhood is up for grabs: anthropological and philosophical questions concerning identity intersect with legal and administrative categories in the handling of children born through cross-border surrogacy.
Keywords: conflicts of laws, international surrogacy, personhood, sociology of law