European Family Law Volume III

European Family Law Volume III

Family Law in a European Perspective

Edited by Jens M. Scherpe

This four-volume set maps the emerging European family law. It is intended to serve as a resource for anyone interested in this area of law, as well as a basis for teaching on comparative and international family law courses. The first volume examines the impact of institutions and organisations on European family law. While there is no European body that could actually legislate definitively on family law, there are some institutions that have a direct impact on European family law, while the impact of others is more indirect. In the second volume the changing concept of ‘family’ and challenges for domestic family law are analysed in 21 different jurisdictions, in 16 chapters. All contributions look at ‘horizontal’ family law (the law concerning the relationships between adults), ‘vertical’ family law (the law concerning the relationships of adults and children) as well an ‘individual’ family law (the law on names and gender identity). In the third volume the contributions take a comparative view on specific issues from a European perspective. The fourth volume, which works as a stand-alone monograph, draws on all of the previous chapters, and discusses the present and future of European family law. It establishes areas where ‘institutional’ European family law exists – in the sense that there are binding legal rules for all European jurisdictions – for example, as a result of a decision by the European Court of Human Rights. It also identifies areas where, as a result of common legal and social developments for ‘horizontal’, ‘vertical’ and ‘individual’ family law, an ‘organic’ European family law is emerging and suggests how family laws in Europe are going to develop in the future.

Chapter 7: Parentage and surrogacy in a European perspective

Katarina Trimmings and Paul Beaumont

Subjects: law - academic, european law, family law


Surrogacy completely disrupts traditional rules on legal parentage as it separates the three principal markers of legal motherhood: gestation, genetics and the intention to parent. Indeed, in surrogacy the woman giving birth may not be genetically related to the child and she has no intention of parenting the child she is carrying. Instead, it is planned that the child will be raised by a third party, who had instigated the child’s conception. As a result, the normally imperceptible legal parentage rules traditionally based on an instinctive assumption that the gestational mother is the legal mother and her husband, if married, is automatically the legal father, are inevitably called into question. A surrogate mother may be defined as a woman who carries a child, pursuant to an arrangement made before she became pregnant, with the sole intention of the resulting child being handed over to another person or persons and the surrogate mother relinquishing all rights to the child. There are two types of surrogacy: traditional surrogacy and gestational surrogacy. In traditional surrogacy, the surrogate mother becomes pregnant with the sperm of the intended father (usually by insemination, and seldom through sexual intercourse) or is inseminated with donor sperm. As a result, the surrogate mother is genetically related to the child. In gestational surrogacy, an embryo is created by IVF, using the egg of the intended mother (or a donor egg) and the sperm of the intended father (or a donor sperm).

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