This chapter explores the approach of the CJEU and the ECtHR to the highly contentious topic of surrogacy in order to unravel the understanding of motherhood endorsed by these two European courts. It shows that legal motherhood continues to be tied to gestation and birth, thus placing intended mothers in a precarious legal position, especially compared to intended (genetic) fathers. As part of its effort to explain this gender imbalance, the chapter uses the experience of surrogacy as a window for a broader discussion on the gender of legal fictions governing the attribution of parenthood. Whilst the rule mater semper certa est remains one of the most immutable facts of European family laws, legal systems have generally demonstrated a certain flexibility and attention to context in determining legal fatherhood, at times departing from the marital presumption. The chapter argues that this differential attitude reflects a long-standing socio-legal resistance to breaking the continuum gestation-motherhood-caregiving, and aligns with the gendered and higher expectations that legal systems place on mothers compared to fathers.

There is no official or universal definition for the concept of ‘family’. The absence of EU legislative competence in the substantive family law field means that there is no ‘EU family law’. Thus it is the individual EU legal instruments in different policy areas and the jurisprudence of the Court of Justice of the EU that demarcate, on an ad-hoc basis, the contours of the concept of ‘family’ and of related concepts for the purposes of EU law. The chapter argues that in recent years, increasing focus has been directed towards the way EU law addresses diverse family constellations in its laws and policies and how it manages the interaction of different national family law regimes in situations which fall within the scope of application of EU law. It is explained that the EU legislature and, especially, the Court have been faced with a plethora of complicated questions involving family-related matters and – as a result – with the unenviable task of carving out a solution that can be tolerated by all Member States. After identifying some pertinent questions, the chapter proceeds to explain how the chapters in this volume engage with these issues.

This chapter explores the use of assisted reproductive technologies by LGBTIQ people. In order to provide a framework for understanding why access to assisted reproductive technologies has been so important for many LGBTIQ people, the chapter introduces the concept of reproductive justice, which emphasises the social contexts in which people access assisted reproductive technologies, and how this can facilitate access for some groups whilst preventing access by others. The chapter reviews psychological research on lesbian, bisexual, and queer women’s experiences of assisted reproductive technologies, trans people’s experiences of fertility preservation, gay men and surrogacy, and the experiences of children conceived via assisted reproductive technologies.

Chapter 2 explores the right to make use of medically assisted procreation to conceive a child, upheld by the Strasbourg Court as an expression of private and family life. It discusses limitations based on ‘the rights of others’ (e.g. the other gamete provider in disputes over embryos) and ‘morals’ (e.g. public policy objections to heterologous fertilisation, surrogacy and the posthumous use of cryopreserved gametes/embryos). The chapter argues that the refusal to treat couples with donated gametes imposes a choice between genetic parenthood and the continuance of marriage to an infertile spouse, affecting both prospective and existing family life. It further maintains that reproductive autonomy should extend to posthumous reproduction where the deceased left advance directions and there are no overriding child welfare concerns. The chapter notes the recognition of legal ties between children and genetic parents in foreign surrogacy cases, albeit exclusively through the lens of children’s privacy (identity) rights.

The Introduction provides an overview of the conceptual background and main themes of the book. It briefly considers the advances in assisted reproduction technology (e.g. in vitro fertilisation and pre-implantation genetic diagnosis) and their benefits for aspiring parents. It suggests that these scientific developments not only have led to the emergence of new trends in bioethical politics, but have also inspired claims in the international human rights arena. In fact, an increasing number of legal cases, most notably in the European Convention on Human Rights system, has started to establish a set of rights in connection with access to medically assisted procreation; they are an extension of autonomy rights, the right to respect for family life and non-discrimination rights. The Introduction offers a synopsis of each chapter, outlining the key bioethical and legal controversies examined therein, as well as the central arguments proposed by the book in light of international litigation.

Chapter 5 examines the impact of gender, sexual orientation and civil status on access to ART and the enjoyment of family life formed through ART. Aspiring single parents, women in a relationship with a same-sex or transgender male partner, and men in a same-sex relationship are reliant on gamete donation (as well as, in the case of male couples, surrogacy) in order to have a biological child and are particularly disadvantaged by prohibitions on third-party reproduction. These remain, nonetheless, within States’ margin of appreciation. However, where a child was born following the use of donated gametes or surrogacy abroad, the Strasbourg Court requires measures of protection. Significantly, the relationship of surrogate-born children with the intended non-biological parent is equally protected whether the genetic father has an opposite-sex or same-sex spouse. The chapter criticises, however, the less favourable treatment of commissioning mothers based on a conservative understanding of motherhood as gestational.

This chapter considers the child’s right to identity. It is for good reason that the Convention on the Rights of the Child requires that core aspects of a child’s legal identity are in place soon after birth. A legal identity secures the child’s place in society, nation and family, providing the foundations for the child’s sense of self and relationships with others. The fact that these crucial aspects of identity are put in place when the child is an infant means that particular care must be taken to ensure that the child’s interests are not lost; not least because adults often have powerful interests in the way in which a child’s identity is determined and recorded. This chapter considers the formation of a child’s legal identity through recognition of parenthood and the challenges posed by changing reproductive technology and social norms such as the growth of international surrogacy arrangements. Further, a child’s knowledge of their genetic origins and the circumstances of their birth may be important to their sense of self and personal identity. The extent to which the right to identity incorporates a right to knowledge of origins is also considered.

This chapter evaluates agreements about parentage, for example, surrogacy agreements, agreements with gamete donors, agreements about the division of embryos, coparenting agreements, and equitable parent doctrines. The text explores the states reluctance to delegate power over this legal status.

This chapter aims to provide a survey of the recent and emerging conversations between theology (and more specifically moral theology or Christian ethics) and social anthropology (and more specifically the anthropology of morality). These conversations are presented as starting from two sides, as being a matter of theology attending to anthropology, and of anthropology engaging with theology. Banner’s The Ethics of Everyday Life is taken as providing an indication of the nature and promise of the first conversation for enriching theology’s social intelligence and its self-understanding (illustrated in particular by a discussion the Alder Hey scandal and of reproductive surrogacy), and Robbins’s Theology and the Anthropology of Christian Life is taken as indicating the potential for the second, namely that beyond religious life providing material for ethnography, theological ideas and concepts may contribute to anthropological theory, even in relation to such central categories as the gift. The chapter closes with a consideration of some future directions which these conversations may take.

In the final chapter of the book, I argue that future research in philosophy of parenthood should take either a significantly broader or significantly narrower view of parenthood (or parental rights/obligations). We should not assume that we can use any of these four key concepts of parenthood independently, without taking into account their interrelations with others. We may therefore move forward either by considering problem cases in light of these concepts as an interrelated web (or ‘family’) or by stripping back the questions being asked to investigate more specific concepts. For example, the latter approach to moral parenthood might involve putting aside the widespread presupposition that parental rights and obligations are a concomitant ‘package’ and instead focusing on isolated issues, such as the right not to be separated from one’s biological offspring. The rights and obligations with which philosophers are chiefly concerned should, on this approach, be stripped away from the myth of ‘the parent’ as one straightforward entity with clear and consistent characteristics.

This chapter begins by clarifying the distinction between social parenthood and parenting and explain how the longstanding but malleable association between social and biological parenthood depends upon social and legal conventions determining who is eligible to parent. One way in which to place oneself in that situation is to conceive a child biologically – however, biological parenthood often comes apart from social parenthood. I explore the significance of clinical assistance, money, and distance, in navigating this separation in the context of assisted reproduction. The second part of the chapter incorporates gender into the analysis, looking in detail at the social roles of motherhood and fatherhood, and the interplay of biological parenthood and moral parenthood with the expectations associated with these roles – for example, the effect of the visibility of pregnancy on attributional parenthood, the characterisation of fatherhood as more detached and less sentimental than motherhood, the persistence of associations between fatherhood and breadwinning, and so on. In this chapter, I explore the findings of sociological, psychological, and anthropological research into motherhood and fatherhood in order to demonstrate that one can inhabit a social role comprised in part by normative standards, even if one does not conform to those standards.

This chapter investigates the common presuppositions we make about legal parenthood – for example, the assumption that biological parents are legal parents by default in most jurisdictions. Looking back at some of the ways in which legal rules of parenthood have shifted in recent history, I show that these rules are often more tightly knit with legal structures surrounding marriage and other kinship structures, than with biological parenthood, particularly for men. I examine the problems faced by unmarried fathers who either do not know they have biological offspring or discover this too late to claim legal parental rights. I also discuss the role of the principle of ‘the best interests of the child’ and the conflicts that arise when laws motivated by the best interests of children are broken for the sake of the best interests of a specific child. I then focus on the regulation of adoption and surrogacy in order to illustrate the fragility of distinctions between these practices, in which the difference between parenthood and a criminal offence sometimes hinges on a couple of pieces of paperwork.

Inconsolable distress is neither a universal nor inevitable response to inability to have biological children. In Chapter 14, the author criticizes research with clinic samples that has produced a problem-saturated account of childlessness that obscures a wide range of alternative responses. The author examines the influence of pronatalist ideology on people who are impacted by infertility including many people with sex variations. Away from the treatment context, psychological input can guide individuals, couples and groups to explore personal meaning of nonparenthood. It can facilitate service users to grieve for what is not possible, challenge feelings of deviance and shame, reengage with a range of life goals and, perhaps most important of all, recast adult identities. Through the practice vignette built around a heterosexual couple, one of whom has a late diagnosis of Klinefelter syndrome, the author teases out the difficulties of working psychologically in a treatment context, where complex existential issues and relational dynamics are compressed into the frame of pressurized treatment decisions.

In the 1990s, some former patients mounted street protests in front of medical conferences to draw attention to their trauma. They reclaimed intersex as a personal identity and campaigned for healthcare reform. These developments are the focus of Chapter 5. Intersex is coming out of the closet more and more, through being a topic in television documentaries, novels, films and art. Intersex activists challenge medical authority to change practice. Furthermore, they are not waiting for doctors and scientists to come to their viewpoints. They have successfully lobbied human rights agencies to position childhood genital surgery as a violation of their human rights. They demand that surgery is delayed until the child can give informed consent or is at least old enough to participate in the discussion and offer their agreement.

This chapter considers the more complicated process of becoming a parent when one or both parents is not genetically related to the child, and there is a third party (donor, relinquishing parent, or surrogate) involved. The chapter first sets out the key psychological and social challenges that are shared across all modes of non-biological parenthood, and then examines theory and research evidence on the transition to parenthood for heterosexual couples conceiving with donated sperm, eggs, or embryos, women who choose to embark on parenthood alone, with the assistance of a sperm donor, lesbian couples, gay couples, and those who adopt a child.