The Intention to be a Parent and the Making of Mothers
| Date | 01 July 1994 |
| DOI | http://doi.org/10.1111/j.1468-2230.1994.tb01965.x |
| Published date | 01 July 1994 |
| Author | Gillian Douglas |
The Modern hw Review
[Vol.
57
The Intention
to
be a Parent and the Making
of
Mothers
Gillian
Douglas
*
Deciding who is to be recognised as the parent of a child is an important matter
because
it
provides the starting point for determining who has the right to bring up
that child and who will be liable for his or her support. The development of
assisted reproduction techniques whereby the genetic, gestational and social
aspects of motherhood can be separated has complicated this decision, and has
required new legal provisions
to
settle the ascription of parental status. In the
United Kingdom,
s
27
of the Human Fertilisation and Embryology Act
1990
provides that the ‘woman who is carrying or has carried a child as a result of the
placing in her of an embryo or
of
sperm and eggs, and no other woman, is to be
treated as the mother of the child.’ This preference for the gestational over the
genetic mother upgrades the common law assumption that proof of maternity could
be supplied by the fact
of
giving birth to a rule
of
law.
It has been argued that the common law might merely have
viewed genetic consanguinity
as
the basis for maternal rights. Under this
.
.
.
interpretation,
gestation simply would be: irrefutable evidence of the more fundamental genetic
relationship.
I
This assumption was never tested in the English courts2 but, in
Johnson
v
C~lvert,~
the Supreme Court of California has ruled that in a case involving
gestational ~urrogacy,~ whereby an embryo created from the gametes of a couple
who intend to raise the child is transferred to another woman who carries and gives
birth to the child, the legal mother of that child is the genetic mother. California
law is therefore the opposite of that in the United Kingdom. This note examines the
reasoning of the California court and considers what the conflicting answers to the
question
of
who
is
a mother reveal about the similarities and differences in
attitudes to parenthood in the two jurisdictions.s
*Cardiff Law School.
I
2
Hill, ‘What Does
it
Mean to be a “Parent”? The Claims of Biology as the Basis for Parental Rights’
(1991)
66
NYU
L
Rev 353, 370.
A case, known as the Cumbria case and reported as
Re
W
(A4inor.s) (Surrogucy)
[
19911 1 FLR 385, did
in fact arise which would have required the matter to be determined, but it was settled. See the letter
from the parties’ solicitor to
The
Times,
28
February 1990.
(1993)
5
Cal 4th 84, Cal LEXIS 2474.
In this note, surrogacy means an arrangement whereby a woman
-
the ‘surrogate mother’
-
carries a
child for the ‘commissioning couple,’ ‘commissioning mother’
or
‘commissioning father’
-
the
persons who commission the surrogate.
In
‘gestational,’ ‘host’ or
‘full’
surrogacy, thc surrogate does
not provide the egg; in ‘partial’ surrogacy, she provides the egg and
is
therefore the genetic as well as
gestational mother.
Other jurisdictions have tended to take a cautious, if not hostile, approach
to
surrogacy arrangements
and hence have tended to prefer the gestational mother as the legal mother
-
eg the National Bioethics
Consultative Committee
of
Australia would strictly regulate surrogacy and legal parenthood would not
be transferred until the surrogate had been given one month after the child’s birth
to
make up her mind;
the New York State Task Force on the Life and the Law would refuse to recognise surrogacy contracts
and give the surrogate the
prima
facie
right
to
custody
of
the child (see the discussion by Franklin,
‘Surrogacy on Three Continents’ (1991)
65
Bull Med Eth 13). In France, the Cour de Cassation
revoked an adoption order made in favour of a commissioning couple, holding that a surrogacy
agreement (paid or not)
is
illegal as constituting an unauthorised disposal of the human body: see
frocureur GPnirul
v
Mudume
X,
31 May 1991, Cass Ass Plenitre, 5417, discussed by Steiner.
‘Surrogacy Agreements in French Law’ (1992)
41
ICLQ
866.
3
4
5
636
(0
The
Modern
Lw Rcvicw Limited
1994
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