Surrogacy and the 'best interests principle'

There is no question that the best interests of the child must be part of any discussion about surrogacy. However, the ‘best interests principle’ is not a concrete concept, nor can it be subject to one definitive definition. This chapter will discuss both the theoretical and philosophical considerations concerning the best interests principle, as well as its practical implications. In doing so, it will highlight the way it has been used by parliaments and courts in different jurisdictions throughout the world: when, and in what context, it has been applied; what weight it has been given; and how its content has been conceptualised. It will conclude that it is not the content that any particular legislature or judge gives to the concept that is important, as many interpretations are equally valid, but the weight and importance given to the principle. In decisions on how to regulate surrogacy, and in deciding whether or how to recognise the results of a surrogacy arrangement after the child is born, the child’s best interests must always be considered, and given primary importance. This is the only non-negotiable.