Upholding the dignity of gay men who are (prospective) parents: an analysis of adoption and surrogacy law

ABSTRACT

Many gay men want to be parents. Some, however, feel unable to explore their parenting desires due to heteronormative understandings of the family which pervade their everyday lives. By inhibiting these gay men from exploring their parenting desires, wider society treats them differently from other social groups and curtails their liberty. Another way of thinking about this, at a more fundamental level, is that wider society is disrespecting the dignity of gay men. While law cannot singlehandedly end the stigma that gay men face, it can uphold their dignity by embracing gay men within the protective legal frameworks that are available to other new parents, and signalling the legitimacy of gay men’s reproductive choices. Through this analytical lens, this article then assesses how far adoption and surrogacy law historically upheld the dignity of gay men who were (prospective) parents; how far they currently do; and if (and how) they could go further. The article concludes that significant progress has been made towards judicial and Parliamentary respect for the parenting desires of gay men, but with scope for improvement, particularly regarding the legislative framework for surrogacy.

KEYWORDS:

• Gay men
• sexual orientation
• dignity
• discrimination
• adoption
• surrogacy
• legal parental status
• parental responsibility

Acknowledgments

I am grateful to Gillian Black, Alison Diduck, Zoë Harrison and Rebecca Shotton, all of whom took the time to read draft versions of this article and offered insights that refined my ideas and expression. Thanks also to the reviewer for their thoughtful suggestions, and to Rob George for his support and encouragement along the way.

Disclosure statement

The author was a research assistant at the Law Commission of England and Wales, 2020-2021, working on their joint surrogacy project with the Scottish Law Commission. This article reflects his personal views and not those of his former employer.

Correction Statement

This article has been corrected with minor changes. These changes do not impact the academic content of the article.

Notes

1. The data in Table 3 were obtained through a FOI request made by the author to Cafcass and are not publicly available.