Protecting Identity In Collaborative Assisted Reproduction: The Right To Know One’s Gestational Surrogate

Abstract

Abstract Gestational surrogacy presents a unique form of parenthood: that which is biological but not genetic. This new form of parenthood demands a re-examination of the rights and duties that arise from the parent–child relationship. This article is concerned with the surrogate-born person’s right to know his or her gestational surrogate, an aspect of the right to identity. The springboard for this analysis is draft legislation in Ireland that proposes the creation of a legal right to trace one’s gestational surrogate. The purpose of this article is to interrogate the normative underpinnings of the legal right to know one’s gestational surrogate, exploring whether instrumental or deontological/rights-based justifications provide a better theoretical basis for the creation of a legal right. The article begins by exploring the link between the gestational relationship and identity formation, drawing on current scholarship on the metaphysics and physiology of pregnancy. It goes on to consider instrumental justifications for the creation of a legal right to know one’s surrogate, but argues that deontological or rights-based justifications provide the more compelling basis for creation of the legal right. The article concludes that this applies to all legal regimes that would seek to establish a legal right to know one’s surrogate, and is especially apt in the case of the draft Irish legislation, due to the requirement of mandatory disclosure.