The 2023 edition of the International Survey of Family Law celebrates the International Society of Family Law‘s (ISFL) fiftieth anniversary. This first of two Jubilee editions begins with fascinating memoirs recounting the discussions that led to ISFL‘s creation, a conference in Opatija, Yugoslavia with tanks rumbling nearby on the eve of the Balkan War, the ISFL‘s expansion with meetings in Australia, Japan, and South Africa, and the role of the Society in anticipating and creating a foundation for family law reform.

This first Jubilee edition complements the more personal memoirs with retrospectives on long-term changes in family law across the globe. The chapters describe ‘a revolution in family law’ over the last half century as much of the world shifted from a unifocal emphasis on marriage to much more inclusive systems of family regulation. Individual chapters recount how, in Portugal, the democratic governments that followed the overthrow of Portugal‘s dictatorship embraced family law liberation, the transformation in Belgium in the legal definition of parenthood, and the Scottish developments broadening recognition of different family relationships. Other chapters consider the parallel developments in Japan and China, with the Japanese shifting from a patriarchal system of family regulation to greater recognition of gender equality, and from multigenerational families to nuclear families to individual expression, while the Chinese have reformed family law and procedure as part of the ‘rejuvenation of the Chinese nation’.

The chapters focused on more recent developments, in turn, report on the continuing process of family law reform and retrenchment. This first Jubilee edition reviews the incorporation of artificial intelligence into family law techniques, with a particularly trenchant comparison of the success in doing so with online platforms in Australia and the much greater resistance from practitioners in the Netherlands. Another chapter examines the evolution of the relationship between civil and Shariʿa courts in Israel, as Muslim litigants obtained the ability to choose between civil and religious tribunals. It describes the result as the ‘Islamisation of Israeli law’, with civil courts applying relatively conservative interpretations of shari ʿa law and the ‘Israelisation of shari ʿa law’, as the Islamic tribunals adopted relatively more liberal interpretations of the same religious principles.

With the 2022 edition, we mark a passing from Margaret Brinig’s many years of effort overseeing the International Survey of Family Law as General Editor, to our assumption of the responsibilities. We hope to live up to the example Professor Brinig has set.

This year’s edition comes as we begin to resume in person activities and, over the next year, we will mark the International Society of Family Law’s golden jubilee. As the world recovers from COVID-19, this edition will mark the developments across the globe and examines some of the innovations that have arisen in the context of the disease and how these innovations have been integrated into family law practice.

An extraordinarily broad review of developments from around the world is included in the 2022 Survey. The volume examines the growing inclusion – and continuing limitations – of LGBT families into family law adjudication, chronicling developments in China, Ireland, and South Africa. It considers the status of de facto relationships in the Czech Republic, and the challenges of determining parenthood in the context of assisted reproduction and surrogacy in Belgium and France. A number of contributions report on the incorporation of international treaties into domestic law, particularly in Norway, Hong Kong and Australia, whilst others explore the challenges of managing cross-border issues involving the enforcement of foreign judgments and migration in France, Sweden, and Chile. Articles address the fragmentation of family law in Australia’s federal system and the role of artificial intelligence in family law adjudication in Italy. In addition, this volume reports on grandchild adoption in South Korea, the decision-making capacity of the disabled in Poland, abortion in England and Wales, grounds for divorce in the Seychelles, the impact of COVID-19 on Slovenian custody adjudication, spousal support developments in the United States, and the impact of demographic changes on spousal support in China.

Our thanks go to Christine Bidaud and the Family Law Center of the Université Jean Moulin Lyon 3, who have provided the French translations for the contributions.

When it was decided in 1993, the decision in Borelli v. Brusseau1 sent shockwaves through the legal community. Borelli involved the enforceability of an oral contract between a husband and wife in which the wife promised to care for her ill husband in return for his promise to “leave her” assets worth approximately $500,000 that would have otherwise been largely his pursuant to their premarital agreement.2 The wife, Hildegard Borelli, quit her job, brought the husband, Michael Borelli, home and cared for him until his death a few months later. But the husband neither transferred the property to her nor changed his will, which left the property to his daughter from a prior union, Grace Brusseau. The California Supreme Court ruled that the oral agreement was unenforceable because it lacked consideration, given spouses’ duty to support each other, and violated the public policy against such agreements.

Two long-term shift s in the family have remade family law in the United States. One involves the fight of same-sex families for recognition. Barred access to marriage and in many jurisdictions to adoption and other forms of family status, same-sex couples have fought for the expanded use of contract and sometimes newly created statuses to forge families of choice. During the same period, different-sex couples have also forged new types of families as marriage has become optional, and as adults join together, have children, separate, and form new relationships. The courts have responded to these two developments through the use of different doctrines, sometimes extending, for example, domestic partnerships and civil unions solely to partners who could not marry, or sometimes interpreting equitable principles to recognise same-sex partners without a biological tie as parents of a child while addressing the parental standing of traditional step-parents through a different set of legal doctrines.

This chapter examines recent developments in US family law and argues that the time for convergence among these different legal doctrines is at hand. Three developments in particular may drive that convergence. The first is the ability of same-sex couples to marry. This raises the issue of whether marriage will become a bright-line marker between committed couples and those in more contingent relationships and, if so, what the consequences will be. Determining what the marital presumption of paternity means in the new era may be a particularly important aspect of that process, and it may signal the degree to which doctrines based on marriage and doctrines based on parentage by intent converge into a single set of precepts that establish responsibility for children at the time of birth.

The second involves the continuing role of functional parentage. The inability of same-sex couples to gain recognition for their relationships helped spur recognition of parentage by estoppel, de facto parentage, psychological parentage, and other doctrines establishing parentage rights and obligations on the basis of the assumption of parental roles. The extension of these doctrines to step-parents and uncommitted partners, however, does not necessarily have the same meaning as application of the same doctrines to same-sex couples who could not marry, but who nonetheless constituted the only two parents a child was likely to have directly involved in her life.

AN OVERVIEW OF SURROGACY ACROSS THE UNITED STATES

INTRODUCTION

In the United States, the law of surrogacy reflects a combination of state law, with the majority of states having adopted no direct legislation or definitive appellate precedents; and private law, with contracts of uncertain enforceability shaping the courts ‘and the parties’ expectations about the outcomes in the event of a dispute. While this creates substantial uncertainty about surrogacy law, the states that enjoy the most robust surrogacy practices do have comprehensive legal standards, and jurisdiction shopping within the United States is relatively easy to do. In addition, established commercial agencies, which draft standardised contracts, develop practices that set industry norms. As a result, American surrogacy law is more robust than a review of statutes and reported decisions might suggest.

Surrogacy law in the United States has developed in the context of a federal system, which entrusts family law, the licensing of medical professionals, and private contract law to the individual states. At the federal level, Congress has some power to address surrogacy on a national basis, but it has not chosen to exercise it. The states are therefore free to adopt their own approaches to the legality of surrogacy and to the determination of the children ‘s parents. In the majority of the states that lack explicit statutes on surrogacy, however, many courts have yet to address surrogacy at all or have done so only in decisions that do not constitute binding precedent. Complicating matters further, commissioning parents who live in a jurisdiction that prohibits surrogacy may contract with a surrogate in another state where such contracts are enforceable, and the determination of parentage may then depend on the child’ s residence at the time of the order (typically the state where the surrogate gives birth). The US Constitution then requires that other states accord ‘full faith and credit’ to the parentage judgments. The states are similarly free to regulate international surrogacy arrangements on whatever terms they choose; the fact that the commissioning parents come from outside the United States does not affect state power to determine parentage or the validity of contracts.