David Quinn
Irish media make it appear simple and humane to give intended parents automatic legal rights, but surrogacy is complex, writes David Quinn
A campaign in favour of the rights of Irish people who use international surrogacy to have children has been substantially stepped up in the last couple of weeks. As usual, the ethical pitfalls of surrogacy have not been aired, even though they are substantial, and in some countries have led to the practice being totally banned. But not here, because we appear to have decided that giving full recognition to it is the latest ‘modern’ thing we must do.
Before proceeding, we need to set out some of the terminology used in this debate. A surrogate mother is the woman who will give birth to the children. The ‘commissioning adults’ are those who have sought out the surrogate and are paying her for her services. This might involve expenses only (which will be substantial), or a fee as well.
The commissioning adults are also sometimes known as the ‘intending parents’ because once they take delivery of the child, they intend raising it.
The ‘intending parents’ might or might not be the biological parents of the child. They might have provided their own sperm and egg, or they might use donated sperm and/or a donated egg.
Possibility
This gives rise to the possibility that the woman who intends raising the child is nether the biological mother of the child, nor the birth mother. The man who intends raising the child might not have provided his own sperm, and therefore will not be the biological father
As Irish law currently stands, it can be difficult for people who use surrogates to be recognised as the child’s legal parents. Where the intending father is also the biological father, that is, his sperm was used in the process, it is much easier to be made the child’s legal parent.
But where the intending mother is neither the biological mother nor the birth mother, it can be very difficult.
Campaigners want the law changed so that anyone who goes abroad to use a surrogate and then comes home with a child will automatically be recognised as the child’s parent regardless of the degree of biological connection.
This would make it far easier than adoption which these days involves a rigorous and arduous screening process.
Ireland still does not have a law regulating matters like assisted human reproduction (AHR) and surrogacy. One has been in the pipeline for years, and under current plans domestic surrogacy will be recognised, but not international surrogacy, not on paper anyway. In addition, only ‘altruistic’ surrogacy will be recognised not commercial surrogacy which involves a fee.
Fee
Almost all international surrogacy involves a fee. Many Irish couples go to Ukraine and hire surrogate mothers there, usually through agencies, because it is cheaper than places like California, but it can still cost around €35,000, with Irish legal fees on top of that.
The surrogate mother herself will receive around €18,000 in fees and expenses. That is considerably more than the average Ukrainian wage.
At present, if a couple (or individual) come home from abroad with a child obtained via surrogacy, they must apply to court to be recognised as legal guardians of the child.
So, should we simply change the Irish law to make this process as easy as possible, or is the issue more complicated than that?
Certainly, if you are following this issue in the Irish media, it will appear both simple and humane; given the intending parents automatic legal rights.
In fact, to do so without any further debate does a total injustice to the complexity of the issue.
To start with, do we really want to legalise commercial surrogacy, that is, paying a woman to have a baby for you? Doesn’t this sound uncomfortably like turning both pregnancy and the babies themselves into a commodity? This is why most European countries ban the practice outright.
Another issue is the nature of surrogacy contracts. In some cases, the surrogate mother loses the right to keep the child she has given birth to once the child is born. She will have signed a contract to this effect.
This means that if she changes her mind, the baby can be removed forcibly from her. Is this really what we want, particularly given the history of mother and baby homes in Ireland and elsewhere?
Usually, the surrogate will be implanted with two or more babies in the hope that at least one successful pregnancy results. Sometimes the contract will stipulate that if more than one baby looks like it will make it to full-term, other babies must be aborted. This is euphemistically called ‘foetal reduction’.
Comfortable
Are we comfortable about this? Suppose the surrogate mother gives birth to more than one baby having refused to abort the ‘surplus’ one? What happens then? The commissioning couple will be under no obligation to take home the second baby, but the surrogate might not want to raise it either. Pity the poor child.
In fact, there are documented cases of surrogates giving birth but then the commissioning couple change their mind because the child turns out to have a disability.
This was exactly the fate of one little girl in Ukraine named Bridget. The surrogate did not want to raise the child, and had not changed her mind about the matter. She was having the baby for another couple. That is the whole purpose of surrogacy.
But the American couple who hired her changed their minds when they discovered Bridget had a disability. The law can do nothing about it. The result is that Bridget is now growing up in an orphanage.
These are only some of the problems that surrogacy gives rise to, but as usual they are not being raised in public discussions about the practice. Instead, highly emotional personal stories are being used to make us agree to something that is deeply problematic in practice. The ethical problems must be honestly and fully aired so the public can make a more informed choice about the matter. Nothing else will do.