Neither Nature nor Contract: Toward an Institutional Perspective on Parenthood Essay
Authors: Lifshitz Shahar 
Published: December 2014

The official narrative of parental laws in Israel describes biological parenthood as the natural legal basis for determining parenthood, while recognizing legal adoption and surrogacy, in specific circumstances, as the sole official exception to the rule (and even then with some remnants of the biological connection). However, closer examination of parental laws in Israel, as well as in other countries, reveals that biological parenthood has in fact never served as the sole basis for recognizing parental status. Familial status, explicit and implicit agreements, and functional parenthood have all served, and continue to serve in many cases, albeit not always officially, as key parameters in determining the parental relationship and its consequences. The objection against the exclusivity of natural, biological parenthood has seemingly been strengthened in light of the challenge facing lawmakers through technological reproduction advances such as sperm donations, egg donations, and surrogacy. As a result of these recent developments, prominent scholars have begun to seek alternative definitions for the biological definition. One such approach, which was influenced by cultural feminism, attempts to determine the identity of the parent based on a concrete psychological relationship between the parent and the child. Another, more radical approach, views individual autonomy and the voluntary contract as the new basis for legal parenthood. In this essay, I argue that both alternatives – natural-biological and voluntary contract – do not sufficiently narrate the story behind determination of parenthood in Israeli law nor do they supply a sound normative basis for proper regulation of parental determination. In addition, I argue that while these approaches, which focus on the concrete psychological relationship between parent and child, add an important element to the discussion of parental determination, they are too focused on the private aspects of specific parent–child relationships and in doing so, these approaches overlook important elements of the proper legal regulation of parenthood. In light of this insufficiency, I suggest a social-institutional perspective of parenthood, one emphasizing that parenthood is not merely a matter of nature, but instead an artificial construct structured and designed by society. In addition, this approach rejects the current dissonance that exists between (1) the legal determination of parenthood; (2) the regulation of reproductive technologies, on the one hand, and the regulation of parenthood’s content in the sense of regulating parental status vs. state and vs. children, on the other hand. This approach maintains that the legal and social definition of parenthood will inevitably affect the content of parenthood. Therefore, I argue that on a normative level, various decisions regarding regulation of reproductive technologies and the determination of parenthood must take into account not only the involved parties but also the manner the decision can affect the conception “who is a parent” and more importantly, the ethos of parenthood that the law should encourage.