Constructions of the ‘Best Interests of the Child’ in New South Wales Parliamentary Debates on Surrogacy

Abstract

Across many sectors of Australian society, surrogacy continues to be viewed as a controversial mode of family formation. One possible reason for this is that women who carry and give birth to a child for another person disrupt normative understandings of what it means to be a mother, and what constitutes a family (see Riggs and Due, 2012 and Raymond, 1994 for a discussion of how motherhood is constructed in debates over surrogacy, and Jones, 1990 and Orloff, 1993 for examples of feminist writing concerning the vulnerabilities of all women in terms of their presumed reproductive capabilities and the subjugating effects this can have). One particular way in which controversy over surrogacy is voiced is via claims that surrogacy is not in ‘the best interests of the child’ (where children’s best interests are normatively understood as served by having a mother and father who conceived and birthed the child). Yet as Jenkins (1998, p. 2) argues, such recourse to normative notions of ‘the best interests of the child’ serve ‘as a “human shield” against criticism’, due to the fact that what constitutes ‘the best interests of the child’ is rarely, if ever, clearly defined. Instead, claims about children’s interests are deployed rhetorically to bolster the position of the speaker and their own conception of what the category ‘child’ means, rather than necessarily being about the actual needs of children (Baird, 2008).