Family Law in a European Perspective
Edited by Jens M. Scherpe
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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