Conceptions of motherhood and how they affect the way surrogacy is viewed and regulated

Abstract

The way in which surrogacy is viewed and regulated is determined by the conception of motherhood which is held by either an individual or a particular society. Conceptions are not static they develop and change over time. Each challenge to the conception of motherhood in some way alters that conception, whether it be by strengthening the conception which was held or by altering the conception held to any degree. This thesis will begin by exploring the conceptions of motherhood which have been drawn from the surrogacy literature. A common feature of the different conceptions of motherhood are the elements of motherhood which exist; the genetic, the gestational and the social. The way in which these elements are combined and the emphasis given to each determines the difference between the conceptions. Motherhood is a personal and emotional issue, and as such each individual has a different conception of motherhood. A societies conception of motherhood can be determined by the way motherhood is regulated. The focus of this thesis being the way in which surrogacy is regulated in New Zealand. In particular, surrogacy using assisted reproductive technologies.

The New Zealand conception of motherhood can been determined by looking at the formal ethical debate on surrogacy in this country as well as looking at the language of the statutory law relating to motherhood. The conception of motherhood which can be drawn from these is very traditional, the three elements of motherhood are traditionally fulfilled by one woman. Although the separation of the genetic element from the gestational and social elements is accepted but the separation of the gestational element from the social element is not. The present legal situation does not take surrogacy into account. What this has meant is that surrogacy using assisted reproductive technologies, a process which deliberately sets out to separate these elements, has only recently been approved in this country by the National Ethics Committee on Assisted Human Reproduction. What this means is that those who use assisted reproductive technologies in surrogacy arrangements are treated differently by the law than others who require assisted reproductive technologies to achieve motherhood, a group whose rights as mothers are protected. Legislation dealing with the status of children born as a result of other assisted reproductive procedures is found in the Status of Children Amendment Act 1987. The only way that this discrimination against those who require the use of a gestational surrogate can be avoided is the enactment of legislation specifically dealing with surrogacy.