The role of non-genetic parents in a surrogate-born child’s identity: an argument for removal of the genetic link requirement

For the court to grant a parental order recognising intended parents as legal parents of a surrogate-born child, the gametes of at least one of the intended parents must have been used to create the embryo, under section 54(1)(b) and section 54A(1)(b) Human Fertilisation and Embryology Act 2008. In the Law Commission and Scottish Law Commission’s consultation paper, there was a provisional proposal to remove the genetic link requirement in cases of medical necessity. However, this proposal was not included in the Law Commissions’ Final Report, instead recommending the retention of the requirement for a genetic link in almost all circumstances. This article contends that the Law Commissions’ recommendation should be reconsidered in light of the child’s right to identity. By reviewing how identity has been used by the courts when determining whether to grant a parental order, as well as a developing interpretation of Article 8 of the United Nations Convention on the Rights of the Child and European Convention on Human Rights, it can be asserted that the identity of surrogate-born children necessitates recognition of the relationship between the child and intended parent(s), irrespective of a genetic link. On this basis, it is argued that there should be the possibility for intended parents to establish legal parenthood following surrogacy without the requirement for a genetic link.