Legally recognising intention : parenthood in surrogacy and assisted conception

Since its emergence in the late 1970s, surrogacy has been both socially and legally problematic. However, it can be argued that there has been an evolution of opinion regarding the practice of surrogacy, on both a cultural and a professional level. Many of the problems predicted by academic and other commentators have not occurred or, if they have, they are not widespread: surrogacy is not, on a general level, exploitative; neither does it commodify children or the reproductive process. It does, however, provide a reproductive option of last resort for some people or couples experiencing infertility or involuntary childlessness. As such, and because no danger is presented purely by allowing the practice of surrogacy to continue, it must be facilitated and legitimated as a reproductive option. Furthermore, because it is used as a method of founding a family, those who play the familial roles should be recognised, in order to make the social reality of motherhood and fatherhood a legal reality. Current regulation allows but discourages the operation of surrogacy. This thesis questions whether this should be the case and, in concluding that it should not, suggests ways in which surrogacy could be regulated in the future. The essence of these recommendations is that the intending parents in a surrogacy arrangement should be legally recognised as the parents of the child born to the surrogate. This thesis will argue that this recognition should be based on the concept of intention and supported by the enforcement of surrogacy arrangements as contracts.