Maternal Lineage of a Child Born Through Surrogate Motherhood (A Comparative Study)

Abstract

Assisted Reproductive Technologies (ART), particularly surrogacy, have evolved significantly, raising fundamental legal challenges in determining the legal maternity of child: Is it the egg provider (the genetic mother) or the women hosting the pregnancy (the gestational mother)? To address this issue, this research employs a descriptive-analytical methodology within a comparative framework, focusing on maternal lineage in two distinct legal systems: Iraq and United States of America.

The findings reveal that Iraqi law-based on Islamic jurisprudential principles and the principle of the primary of birth (parturition) – considers the women who carries gives birth to the child as the legal mother, thereby nullifying any contracts this principle. In contrast, American law reflects a diversity of approaches due to its federal nature. Some states, such as California, have adopted the “Intent-based parentage” theory, recognizing the maternity of the genetic mother though pre-birth judicial orders.

This divergence is attributed to philosophical, cultural, and structural differences between the two systems, necessitating a legislative review within the Iraqi context. This study seeks to analyze the similarities and differences and propose practical legal solutions that keep pace with medical advancements while ensuring the rights of children born via surrogacy. Accordingly, the research recommends amending Iraqi legislation to allow for the regulation the principle of “parental intent” as a benchmark for determining legal maternity, provided there is judicial oversight and safeguards to protect the rights of all parties, particularly the child.