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feminists@law, Vol  8, No 1 (2018)


The Absence of the  ‘Surrogacy Contract’ from Judicial Constructions of Surrogacy

  Alan Brown*
This is a video of a paper given at the Sexual Contract: 30  Years On conference held in the School of Law and Politics, Cardiff University  on 10-11 May 2018. This paper was part of Panel 4: The New Surrogate Mother Contract,  chaired by Julie McCandless. The  PowerPoint slides accompanying the paper are available as a separate file.



This paper explores the absence of the  ‘surrogacy contract’ from recent judicial decisions on surrogacy. In The Sexual Contract Pateman argued that,  ‘[o]nly masculine beings are endowed with the attributes and capacities  necessary to enter into contracts’ and therefore that the sexual contract was  ignored in the establishment of patriarchal norms. The central principles of  the regulation of surrogacy in the UK are set out in the Surrogacy Arrangements  Act 1985; s.1A states that surrogacy arrangements are unenforceable and s.2  prohibits commercial surrogacy. This paper argues that one of the consequences  of these principles has been an absence of consideration of the underlying  ‘surrogacy contract’ in judicial decisions concerning ‘parental orders’: the  post birth order that transfers legal parenthood from the surrogate to the  intended parent, set out in s.54 of the Human Fertilisation and Embryology Act 2008.  Instead, other interests have been focused upon within judicial language,  particularly the ‘best interests of the child’ and a related emphasis on  reflecting the ‘status’ and ‘identity’ of the child(ren). 

Moreover,  this language is reflected within the wider ‘reform’ agenda regarding the  regulation of surrogacy. This conceptual approach obscures the contract between  the parties which is at the heart of any surrogacy arrangement. Thus, this  paper argues that this absence of contemporary consideration of the contractual  nature of surrogacy arrangements reflects the disregarding of the sexual  contract that Pateman identified 30 years ago.

 



  
    * Lecturer in  Law, Abertay University, Dundee, UK. Email: a.brown@abertay.ac.uk   

  



