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Page 1 of 4

  • Gender, Identity and The Law

  • Edited by Jens Scherpe, Aalborg University, Denmark, Stephen Gilmore, King's College London
  • Book:
    Family Matters
    Published by:
    Intersentia
    Published online:
    20 April 2023
    Print publication:
    22 September 2022, pp 981-996

  • Summary

    1. INTRODUCTION

    It goes without saying that John Eekelaar is a giant of family law, not just in the United Kingdom, but across the world. His writing on children’s rights, in particular, has been field-defining, and no student essay (or, indeed, academic article) is complete without a reference to his work. What is less well known is the quieter contribution Professor Eekelaar has made to the thinking – and writing – of those around him. Whether it be in conferences, workshops, or through his work on the International Journal of Law, Policy and the Family, his engagement with the ideas of others – and particularly young scholars coming through the ranks, unsure of their academic footing – has encouraged a new generation of family lawyers.

    This chapter seeks to build on Professor Eekelaar’s later work on law, gender and the understanding of identity, which will be examined in section 2. Section 3 will then explore the role that the law plays in defining and confining the concepts of sex and gender, and how this corresponds with individual sex/gender identification. Section 4 will examine the reasons why the law wishes to regulate sex/gender, and highlight the advantages and disadvantages that this has for various groups within society. Section 5 will then go on to provide possible models of reform, proposing a new way forward that does not rely on sex/gender as a uniform and unchanging legal identity, but as a legal concept whose definition changes depending on the context in which it is employed. Finally, section 6 will provide some brief conclusions.

    2. DEFINING IDENTITY

    In his 2018 article ‘Family Law and Identity’, Eekelaar explored the meaning of ‘identity’, and described two versions of this concept. The first, he termed ‘individual identity’, which relates to an individual’s personal characteristics, and perception of their self. This internally driven concept of identity corresponds closely with an individual’s personality traits and features, which are seen as central and self-defining.

  • England and Wales

  • from THE TOLERANT APPROACH
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 115-134

  • Summary

    GENERAL LEGAL FRAMEWORK

    THE LEGAL FRAMEWORK FOR SURROGACY

    England and Wales is regulated by two key pieces of legislation: the Surrogacy Arrangements Act 1985, and the Human Fertilisation and Embryology Act 2008 (‘HFEA 2008’). Having said this, there has been a large body of jurisprudence built up by the courts in this area which has substantially affected the way in which this legislation is applied. In examining the English law, it is important to note that it does not regulate when, how, or by whom a surrogacy arrangement can be entered into. Rather, it regulates the effects of the surrogacy – how legal parenthood can be transferred after birth.

    While England has been lauded as a jurisdiction that is very permissive towards surrogacy, in truth, the legislative framework for recognising parenthood through a surrogacy arrangement is highly restrictive. Although it does provide a specific mechanism for transferring parental status from the surrogate to commissioning parents – unlike in so many countries where adoption laws have been co-opted to this purpose – the circumstances in which this can be granted are narrow.

    The opposition of the British government to surrogacy can be traced back to the Report of the Warnock Committee, which was set up in 1982 to inquire into the technologies of IVF and embryology. The Committee argued that surrogacy constituted an attack on the value of the marital relationship, as it introduced a third party into the process of procreation, which they believed should be confined to the ‘loving partnership between two people.’ They suggested that it was inconsistent with human dignity for a woman ‘s womb to be used for financial profit, and treated’ as an incubator for someone else ‘s child’ and that given the risks relating to pregnancy, no woman should be asked to undertake it for another person in order to earn money. Furthermore, the Committee felt that the relationship between mother and child was distorted by surrogacy and argued that it was degrading for a child to be treated as a commodity and ‘bought for money’.

  • Questionnaire

    • By Jens M. Scherpe, University of Cambridge, England, United Kingdom; University of Hong Kong, Hong Kong SAR; University of Aalborg, Denmark, Claire Fenton-Glynn, University of Cambridge, England, United Kingdom
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 7-12

  • Summary

    GENERAL LEGAL FRAMEWORK

    1. Are there specific legal rules dealing with surrogacy in your jurisdiction (especially: is there a specific statute or merely an administrative/court practice)?

  • – Please provide information including the general constitutional/legal framework where appropriate.

  • – If there are no specific legal rules, is surrogacy nevertheless regulated through other mechanisms (e.g. medical boards/professional bodies)?

    • 2. Is there a specialised authority set up to oversee surrogacy in your jurisdiction?

    If so, please provide information concerning the role, and powers, of this authority.

    3. What is the reasoning behind the law/rules on surrogacy (or lack thereof) in your jurisdiction?

    Please describe the historic development leading up to the current law, and any significant legislative or judicial debates.

    Please note if there is any distinction drawn between traditional and gestational surrogacy.

    4. Please give statistical information (where available), concerning:

  • – (estimated) number of surrogate births in your jurisdiction;

  • – (estimated) number of surrogacy arrangements undertaken by citizens in another jurisdiction;

  • – number of clinics in which surrogacy can take place;

  • – any other relevant/interesting statistical information.

    • SURROGACY ARRANGEMENTS IN GENERAL

    1. Are surrogacy contracts legal in your jurisdiction? Are they binding/ enforceable?

    If so, please provide information concerning the terms that can, and cannot, be included.

    2. Can a surrogate be remunerated for her participation in the surrogacy arrangement?

    In particular:

  • – Are there guidelines concerning appropriate levels of payments? If so, who are they provided by?

  • – Are there any limits on payments?

  • – How are payments to the surrogate monitored?

    • Please provide any statistical information concerning payments made to surrogates in your jurisdiction.

    LEGAL PARENTHOOD AT THE TIME OF BIRTH

    1. Who are the legal parents of a child born through surrogacy at the time of birth?

    How does this relate to the way in which your jurisdiction views parenthood in general, and motherhood in particular?

    2. Will there be any indication on the birth certificate, or other document, that the child was born as a result of a surrogacy arrangement?

    3. Is information concerning the surrogate – as the person who gave birth – preserved by the relevant authorities if she is not the legal mother of the child?

  • Introduction

    • By Jens M. Scherpe, University of Cambridge, England, United Kingdom; University of Hong Kong, Hong Kong SAR; University of Aalborg, Denmark, Claire Fenton-Glynn, University of Cambridge, England, United Kingdom
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Book:
    Eastern and Western Perspectives on Surrogacy
    Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019, pp 1-6

  • Summary

    The issues arising out of surrogacy are global ones. Whether one approves of surrogacy or not (or indeed just some forms of it), it is a simple fact that there is a global surrogacy market, and people are making use of it. Jurisdictions therefore cannot avoid taking a position on surrogacy, and the aim of this volume is to canvas and analyse how jurisdictions worldwide have reacted to the ‘phenomenon’ of surrogacy in general and international surrogacy arrangements in particular, and then to draw some comparative conclusions.

    For this it is necessary to look at both ‘Eastern’ and ‘Western’ jurisdictions (being aware of how difficult, imprecise and even inappropriate such categorisations can be). Much of the legal research undertaken so far is focused on what can broadly be called ‘Western’ jurisdictions. Some of these jurisdictions are what can be called ‘receiving jurisdictions’ with regard to surrogacy, meaning that couples from these jurisdictions often turn to international surrogacy as a result of the very restrictive legal rules on surrogacy in their home jurisdictions. By contrast, several of the ‘Eastern’ jurisdictions are, or at least have been until fairly recently, destinations for what rather deprecatorily is called ‘surrogacy tourism’. This may be because of the permissive legal rules, or indeed the absence of legal rules, but may also be driven by differences in wealth and income, meaning that commercial surrogacy could be offered at lower rates than in ‘Western’ jurisdictions, some of which also have very permissive rules on surrogacy. In addition, the cultural differences regarding the concept and importance of ‘family’ can also justify drawing a distinction between ‘East’ and ‘West’, and so the book was divided in this way.

    One of the main aims of the book and research project is to look at how the global surrogacy market has had an impact on the law in different jurisdictions and different societies – and in particular, how legislatures have reacted to the social and political pressures resulting from the realities of surrogacy in a globalised world.

Eastern and Western Perspectives on Surrogacy
  • Edited by Jens M. Scherpe, Claire Fenton-Glynn, Terry Kaan
  • Published by:
    Intersentia
    Published online:
    26 June 2019
    Print publication:
    01 May 2019
  • Over the past 10 years, a convergence of scientific, demographic, legal and social developments has led to a significant influx of cases of international surrogacy. What was previously a marginal form of parenthood has become a multi-billion dollar industry, raising concerns for surrogate mothers, commissioning parents, and children alike. Lawyers, philosophers and health care professionals have struggled to formulate a framework to ensure the protection of surrogate mothers from exploitation, whilst combatting the vulnerability of commissioning parents to agencies and intermediaries, and providing children born as a result of this practice with certainty regarding their identity, status, and nationality. The transnational nature of the issues raised in relation to international surrogacy agreements means that individual states have struggled to take decisive action, and there remains a myriad of different responses to this issue. This book brings together experts from Eastern and Western backgrounds, to consider the way in which different jurisdictions have responded to surrogacy, both within their own borders, and when an international agreement takes place involving one of their citizens. Each chapter includes a discussion of the laws concerning the establishment and contestation of legal parentage through surrogacy under domestic law; the rules and laws concerning surrogacy arrangements on a domestic level; and approaches to recognition of legal parenthood acquired through surrogacy in other jurisdictions. In addition, the chapters consider the socio-economic context of surrogacy in the chosen jurisdictions, through questions concerning the profile of surrogate mothers and commissioning parents, the involvement of intermediaries, and the nature of the interactions between these parties. In this way, the book provides a comprehensive understanding of the confluences and tensions in the way surrogacy is approached in these jurisdictions, and seeks to identify trends emerging from these different regions. In doing so, Eastern and Western Perspectives on Surrogacy seeks to contribute to the greater understanding of the regulation of surrogacy throughout the world, and will serve as a reference work for anyone involved in practice, academia or law reform in this subject area. Jens M. Scherpe is a Reader in Comparative Law and Director of Cambridge Family Law at the University of Cambridge. He is the Honorary Professor at the University of Aalborg, Cheng Yu Tung Visiting Professor in Law at the University of Hong Kong and an Academic Door Tenant at Queen Elizabeth Building in London. Claire Fenton-Glynn is a Lecturer in Law at the University of Cambridge. She is an Associate Member of Harcourt Chambers in London. Terry Kaan is an Associate Professor of Law at Hong Kong University and Co-Director of the Centre for Medical Ethics and Law.

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