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Two men and a baby: pedantic semantics

7 February 2011
By Dr Julie McCandless
Lecturer in Law, LSE
Appeared in BioNews 594
While most of us were trying to forget the overindulgence of the festive season, the news that Elton John and David Furnish had become parents following a surrogacy arrangement hit the headlines. It was not long before a magazine had a picture of this newly formed family on the front cover. In a supermarket in Arkansas it was deemed necessary by the store manager to censor their story and a grey plastic cover-up with the words 'Family shield. To protect young Harps shoppers' (usually reserved for 'sexually provocative' or 'revealing' magazines) was slapped across US Weekly. After a large volume of complaints, prompted by the posting of a photo of the censored magazine on Twitter, the 'family shield' was removed. Harps' corporate management issued a statement explaining that the store manager's decision was prompted by complaints from customers about the magazine and that this happened in only one of their 65 stores, but fell significantly short of an apology for the incident.

So, what was it that was deemed so offensive by some customers (to the annoyance of many more)? It seems unlikely that it was the practice of surrogacy per se, but rather the sight of two gay men holding 'their' baby. The use of the same cover-up as that used for sexually explicit material, coupled with a lack of any comparable censorship of celebrity heterosexual couples having children through surrogacy would certainly point to this evaluation. Further objections may have related to the age of the new fathers or the role of their considerable wealth in securing the surrogacy arrangement with the Californian Centre for Surrogate Parenting. Again, however, older fatherhood seems to be something which passes without much criticism in the heterosexual context, while payments to surrogates are becoming seemingly more acceptable to even the UK courts, which operate in a jurisdiction where commercial surrogacy is legally prohibited (1).

It therefore seems reasonable to assume that it was the sexuality of the new parents which so offended the customers at Harps. It is perhaps also highly significant that they were a male same-sex couple. Just as women parenting without men have been subject to social, political and legal criticism, men parenting without women are not free from disapproval. Having previously been refused permission to adopt a child by Ukrainian authorities, in part because of their same-sex relationship, Elton John and David Furnish may have been acutely aware of the significance of their sexuality in their quest for parenthood and this may have influenced their selection of California for the surrogacy arrangement.

California has long been known as a relatively permissive jurisdiction for surrogacy arrangements. Not only are commercial surrogacy arrangements facilitated, but it was one of the first jurisdictions to recognise legal motherhood on a basis other than the gestational link (2). Surrogate mothers are therefore not required to register as the child's legal mother upon birth. This means that a commissioning mother (who may or may not be the genetic mother) can be registered as the legal mother from birth, instead of parenthood having to later be transferred. It also means that two men can be registered as the child's parents from the moment of birth.

This differs significantly from the law in the UK. While recent changes in the Human Fertilisation and Embryology (HFE) Act 2008 make it possible to recognise two female parents from birth (3), such reforms were not extended to two male parents. To countenance such, would have meant either not naming a child's gestational mother on the birth certificate, or alternatively recognising three parents from the moment of birth (4). While the eligibility criteria for parental orders - a type of fast-track adoption order for surrogacy arrangements which fall to be regulated by the HFE Act 2008 - were extended to same-sex and cohabiting couples (5), this is not a significantly new introduction into UK law given that same-sex couples have been able to adopt a child together since the changes implemented by the Adoption and Children Act 2004 came into force. To name two men on a birth certificate was deemed a step too far by the UK legislature, although parenthood could be transferred after birth.

While two men can be named as parents since birth in California, the semantics of the formal registration process are interesting. Original birth certificates, even in the context of gay male surrogacy, continue to use the terminology of 'mother' and 'father'. If the surrogate does not wish to be registered as the legal mother, one of the men can instead be registered as the 'mother' (despite being a legal man). After the initial registration, a new certificate is then issued with the gender neutral terminology of 'Parent 1' and 'Parent 2'. It is unclear why California still insists on naming a 'mother' in the initial birth certificate and whether this should be attributed to a simple lack of administrative reform or a desire to ensure some sort of paper trail which would indicate to the child that they were born through a surrogacy arrangement. However, given the lack of formal regulation of assisted reproduction in the US, even in states like California, it is unclear how a child would be able to gain any further information about their gestational (or genetic) mother if state bureaucracy does not record such information.

In many ways surrogacy raises difficult questions for the law to grapple with, not least the question of what recognition should be given to the women who give birth in these arrangements. The questioning in this comment piece of why two men cannot be named as parents from the moment of birth in the UK is not to be taken as synonymous with the argument that gestational mothers should not automatically be registered as a child's legal parent. However, given that the practice of surrogacy is unlikely to disappear (and will probably only increase) it would surely be wise to consider not only how these arrangements might be best regulated to protect all those involved, but also to revisit how parenthood might best be attributed in such circumstances, not least when it is two men who are seeking to become parents. Sticking to well-rehearsed fault lines informed by predominantly dyadic understandings of gender, sexuality and bio-genetic ties does not seem to appropriately capture the relationships which are formed and created through surrogacy. Although this comment piece involved a US case study, it seems important to recall that more people complained about the censorship than the 'offending' front page.

SOURCES & REFERENCES
1) Re L (a minor) [2010] EWHC 3146
|  2010
2) Johnson v Calvert [1993] 5 Cal.4th 84
|  1993
3) Sections 42-47
HFE Act 2008 |  11 December 2019
4) See further Julie McCandless and Sally Sheldon (2010) ‘The Human Fertilisation and Embryology Act (2008) and the Tenacity of the Sexual Family Form’ 73(2) Modern Law Review 175-207
|  2010
5) Sections 54-55
HFE Act 2008 |  11 December 2019
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