Deconstructing Motherhood: A critique of the legal regulation of surrogacy

Abstract

Surrogacy has been a point of contention for feminists and others since the 1980s. More recently surrogacy has developed a heightened profile within the media, imposing further scrutiny upon the social and legal perspective on motherhood. The legal framework surrounding surrogacy and, in particular, its construction of motherhood is a key area of concern. Surrogacy openly, and obviously, challenges the hetero-normative family form. Subsequently, surrogacy is the ideal lens through which to observe the legal framework surrounding mothers as this practice reflects the socially adaptable nature of motherhood. This thesis argued that the legal regulation of surrogacy frames motherhood as a hetero-normative concept which is open to, and ready for, challenge. This legal construction of motherhood, in the context of surrogacy, is in conflict with social understandings of motherhood. In other words, the way that surrogacy is currently regulated does not reflect the lived experiences of motherhood and requires urgent reform.
The legal conceptualisation of motherhood should reflect the social experience of mothers. It is crucial that societal and legal doctrines of motherhood coincide to present a comprehensive understanding. This will ensure that women’s choices to engage with motherhood in the context of surrogacy are observed and protected. It is argued that contract law provides possible solutions to the difficult relationship between surrogacy and motherhood, helping to re-envision the legal hetero-normative framework currently governing familial structure and women’s choices. The introduction of surrogacy contracts will offer greater legal recognition to non-normative families which are so prevalent within contemporary society. The social reality of motherhood should be the starting point from which to develop a new legal framework. This improved legal framework should incorporate alternative regulatory methods to fully address feminist concerns about women, maternity and the law.