Surrogacy and Parenthood: a European Saga of Genetic Essentialism and Gender Discrimination

The paper tells a story of shifting normativities, from tradition to modernity and back, in the recognition of legal parenthood for families created through cross-border surrogacy. These families, once back home, struggle to establish legal parenthood. The ECtHR has pushed for domestic authorities to rectify this situation. However, it has filled the legal limbo with genetic essentialism and allowed for gender discrimination. While giving full effect to a genetic father’s foreign birth certificate based on identity and best interest arguments, the Court accepts that a genetic mother must adopt to establish a legal parent-child relationship. The paper critically dissects the Court’s biologically determined view of parenting, which sidelines the social parent and contradicts the purpose of assisted reproduction to overcome biological barriers. It concludes by rejecting the gender-discriminatory element of power and control over legal motherhood imposed by the procedural step of adoption.