Surrogacy: Is There Room for a New Liberty between the French Prohibitive Position and the English Ambivalence?
in Law and Bioethics, Current Legal Issues, M. Freeman (Ed.), Oup,2008, Vol. 11, Chapter 18, 329-357
Posted: 7 Jul 2015
Date Written: July 3, 2007
According to one author, modern times are not an answer to our questions but another way of phrasing them (Irène Théry). The same would be true with Science. In Bioethics, Science does not provide us with legal answers but forces lawyers to rethink fundamental issues such as autonomy, welfare and parenthood. The question addressed in this paper is that of motherhood, in light of the different approaches taken to surrogacy in French and English Law. Is surrogacy just another form of medically assisted reproduction or should it attract a special legal regime?
The analogy between surrogacy and other forms of medically assisted reproduction is not fully drawn in either of the two English and French legal systems. Where English Law recognises surrogacy to some extent, French Law has altogether prohibited it. English Law also refuses to enforce a surrogacy agreement against the surrogate mother’s will whereas French Law suggests that motherhood should per se be outside the reach of contracts. Finally, where English Law legitimises and strengthens surrogacy through adoption, French judges held that adoption requests by commissioning couples amounted to a perversion of adoption rules and should be rejected in abstracto. Through Bioethics and Comparative Law, surrogacy thus offers a real challenge for legal thinking.
Keywords: surrogacy, motherhood, French Law, altruistic, commercial, autonomy
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