Surrogacy is a legal and ethical minefield and must be banned

In the recent surrogacy case involving twins where the genetic mother’s sister acted as a surrogate, I was struck by one aspect of the commissioning woman’s argument for recognition as the children’s mother.

Admittedly, a legal team will submit every possible argument on behalf of a client, even peripheral ones, but this one does provide food for thought.

The applicants submitted: “Not recognising CR as the mother has an implication for the [constitutional] right to marry. If in law the twins are the children of the genetic mother they would be first cousins of the children of the sister. Under Irish law one is entitled to marry one’s first cousin. If they’re treated in law as the children of the sister, they could not marry their siblings.”

The chances that these cousins would ever want to marry are presumably virtually non-existent. But even as a thought experiment, it shows that the implications of this judgment go far beyond genetics. Under this ruling, they would be legally entitled to marry, despite the fact that they were carried in the same woman’s womb, and she even provided breast milk.

Splitting of motherhood

Mr Justice Henry Abbott found that the principle mater semper certa est ( the mother is always certain) was no longer relevant given that IVF allows one to split motherhood into two or more parts. However, that principle has been considered important enough to have been widely applied in European law either to ban surrogacy outright (as in Germany, Austria, France, Switzerland, Sweden, Norway, Italy and Bulgaria) or to make surrogacy contracts legally unenforceable (as in the UK).

Simply because science or medicine allows something, does it make it right, or in the best interests of the children? IVF, where the egg and sperm donor are the parents, and the mother carries the baby, is a difficult, stressful, expensive procedure with a high failure rate. However, when all embryos are fully protected and IVF succeeds, it could be argued that all it does is to help nature along.

Once third parties enter the frame, the situation becomes much more problematic.

Yet on the same day, Judge Abbott also found in favour of a man who was applying to be recognised as a child’s legal father, in a case involving an Indian surrogate mother. In that case, it was the father’s sperm and an anonymous donor egg. Following the judge’s own logic, the legal mother must be the anonymous donor. How will the child’s right to knowledge of this “blood link” be vindicated?