The redefinition of legal parenthood in the era of new assisted reproduction technologies.

Abstract

Biological paradigms (gestation and genetic) are still entrenched in the law as the main factors for allocating parenthood, despite the social and legal changes in family formation and the increasing use of assisted human reproduction (AHR).

Technologies that are lingering in the horizon such as partial ectogenesis, in vitro derived gametes and genome editing, promise to erode the current paradigms for vesting legal parenthood. Accordingly, the current literature on the topic has proposed the intentional paradigm as a more reliable model to designate legal parenthood in AHR. However, the progressive increase in the use of AHR, and the predictable evolution of the technologies involved in the near future, might require the reformulation of the paradigms to arrive at a more effective way to designate legal parents in a scenario of collaborative procreation.

The thesis starts by examining the link between parenthood and children’s rights. Then it moves on to the analysis of legal parenthood in New Zealand’s law to suggest a model for allocating parenthood in surrogacy cases in New Zealand. The model draws from comparative legislation and literature on the topic, and bears in mind children’s rights.

Moving on from there, the thesis embarks on the exploration of specific assisted reproduction technologies (ARTs), such as posthumous reproduction and mitochondrial modification, and a brief consideration of other technologies, to come to the realization that a suitable allocation of parenthood might have recourse to private law. Finally, a reformulation of the paradigm is suggested based on contract law and property rights under the name of the ‘bio-accord’ model. This model rests on the idea that it is the control over the reproductive process that renders it feasible to rely on contract law, whilst detachment of procreative material from the body indicates the need to be protected through property rights.