Regulating parenting through legal parenthood: the case of surrogacy

This paper presents a thought experiment relating to family law in the context of surrogacy. It focuses on the regulatory interplay between legal parenthood and the child welfare principle in the context of surrogacy. In analytic terms, I am interested in how the more overtly rule-based regulatory mode of determining legal parenthood forms a prescriptive canvass for the more discretionary determinations of child welfare. While the welfare principle is rightly described as 'flexible' and 'indeterminate', family law scholarship has demonstrated how the concept is informed and delimited by family form ideology. The argument I develop is that until family law moves beyond the unitary ideological model of the nuclear family in the context of legal parenthood rules – such as by simultaneously recognising the legal status of surrogates and intended parents at birth – the more discretionary regulatory modes and concepts for family law such as the welfare principle will remain fundamentally constricted by family form ideology. This in turn means that it will be difficult, if not impossible, to ever operationalise a family law that is meaningfully underpinned by concepts, or 'values' other than family form ideology. I demonstrate my argument by reference to recent law reform recommendations for surrogacy from the English and Welsh, and Scottish Law Commissions. I show that despite proposing a significant change to long-standing rules on legal parenthood by recommending that in certain regulated arrangements intended parents should be recognised as legal parents at birth to the exclusion of the surrogate, the Commissions' proposals firmly adhere to the same ideology of the nuclear family model. They do so by simultaneously insisting on exclusivity for legal parenthood and by framing surrogacy as about substitution and exchange. The consequence is that the nuclear family form, through overt legal parenthood rules, continues to be the preliminary prism through which surrogacy is understood and regulated, and legal decisions relating to the child's welfare made.