'The Phantom Children of the Republic': International Surrogacy and the New Illegitimacy
49 Pages Posted: 3 Jun 2012
Date Written: 2012
This paper examines the new illegitimacy in Europe, a continent that embraces a much more robust commitment to marriage equality than we find in the United States and that has rejected discriminatory treatment of children born out of wedlock. The new illegitimacy in Europe results from the entrenchment of the principle that the legal mother of a child is always the gestational mother and the widespread disapproval and legal prohibition of surrogacy the principle entails. When citizens of countries that ban surrogacy choose to pursue surrogacy elsewhere, they and their children meet with hostility, opprobrium and exclusion upon their return. The resort to surrogacy abroad subjects these families to legal disabilities that recall the disadvantageous treatment of children born out of wedlock under what are now considered discriminatory legal regimes that violate human rights norms. This paper explores the resurgence of illegitimacy in Europe and reflects on the practice implications for attorneys advising couples and individuals who wish to use surrogacy in other countries.
Keywords: surrogacy, illegitimacy, children born out of wedlock, nonmarital children, assisted reproduction, reproductive tourism, discrimination
Suggested Citation: Suggested Citation