Non‐Traditional Families and the Tenacity of Motherhood: Re C (Surrogacy: Consent) and Re Z (Surrogacy: Step‐Parent Adoption)

Re C (Surrogacy: Consent) and Re Z (Surrogacy: Step‐Parent Adoption) recount one non‐traditional family's struggle for formal legal recognition. The subject child was born pursuant to a surrogacy arrangement entered into in the UK by a male couple and a woman. Post‐birth, the surrogate maintained her agreement to the couple raising the child as their own but wanted more involvement in his life than the intended parents would support. Relations soured, and when the intended parents applied to be formally legally recognised as the child's parents, the surrogate refused to give her consent – which is required by statute. In Re C (Surrogacy: Consent) , the intended parents brought a human rights challenge to the statutory scheme for surrogacy, arguing that its absolute requirement for a surrogate's consent interfered with theirs and the child's rights under Article 8 of the European Convention on Human Rights. This being unsuccessful, in Re Z (Surrogacy: Step‐Parent Adoption) they made a second bid to become their child's legal parents, this time through adoption. Again, their application was unsuccessful. Taken together, these case outcomes and their ratio decidendi reveal the tenacious hold of motherhood on the legal imagination, and the problems this poses for non‐traditional families.