How are babies made? Ask the Supreme Court, darling

Parents entering into arrangements such as surrogacy are doing so in a legal vacuum, in which everyone risks being exploited

‘My bumbling, embarrassed “a mummy and a daddy” explanation doesn’t cut it in the complex, uncertain and ever-changing world of family creation in the 21st century.’ Photograph: Danny Lawson/PA Wire

‘My bumbling, embarrassed “a mummy and a daddy” explanation doesn’t cut it in the complex, uncertain and ever-changing world of family creation in the 21st century.’ Photograph: Danny Lawson/PA Wire

Wed, Jan 15, 2014, 01:00

I got that question recently. My seven-year-old daughter and I were having breakfast when she fixed me with the unmistakable, lawyerly gaze that signals it is time to dart for the nearest exit and leave the other parent to cope. But this time, she had me cornered. “How are babies made?”

Afterwards, it occurred to me that my bumbling, embarrassed “a mummy and a daddy” explanation doesn’t really cut it in the complex, uncertain and ever-changing world of family creation in the 21st century. There’s a mummy and a daddy, I could have begun. But sometimes, there are two mummies or two daddies, and sometimes there are four. Or there might be a mum and a dad and a surrogate. There might be a mum and a sperm donor; a dad and a surrogate; a mum and a dad and an egg donor; or any combination of the above, plus a team of doctors. I might as well have referred her to the Supreme Court for guidance.

It is an old truism of parenthood that making the babies is, relatively speaking, the easy part. The struggle that some couples go through to have a child of their own has lent a certain bitter irony to that cliche, but it’s not entirely redundant. Because actually having the baby – no matter how medicalised the process – is still a stroll in the soft play centre beside the legal quagmire facing those whose families are created through non-traditional routes such as surrogacy, egg donation or IVF.


Many paths to parenthood
The website of the Indian fertility clinic featured in Monday night’s Her Body, Your Babies documentary on RTÉ gives an insight into some of the myriad paths to parenthood that now exist. As well as surrogacy and the now more familiar options such as IVF and ICSI, the clinic offers donor-egg surrogacy for single fathers and embryo adoption.

Whatever your perspective on the ethics of all this, pretending it doesn’t happen is no longer an option. Parents entering into arrangements such as surrogacy are doing so in a legal vacuum, in which everyone risks being exploited – most of all the Irish children born to surrogates abroad, who might end up stateless, and with no legal relationship to the parents who are raising them.

It is depressing that a country that has managed to spend decades tying itself in knots over the rights of the unborn child, has given so little thought to the rights of the living, breathing children born into anything other than the sanctified “a mummy and a daddy” scenario. That’s not to suggest there are easy solutions: a recent High Court ruling effectively concluded that parentage was based on genetics. This ruling will have brought relief for the parents of children born through gestational surrogacy, where their own sperm or eggs were used to create an embryo that was then implanted in a surrogate – and will have simultaneously caused enormous distress for those who used egg or sperm donors.

The Family Relations and Children Bill 2013 aims to clarify this and to address other anomalies, creating a “contemporary legal architecture” on assisted reproduction, guardianship, custody, access and the upbringing of children in diverse family forms, including in same-sex partnerships. But the surrogacy issue is likely to be decided before then.

Next month, the Supreme Court will sit as a full, constitutional court, to hear an appeal involving an Irish couple who had twins through a surrogate mother – in this case, the genetic mother’s sister.

Inevitably, there will be many who have qualms about legislating for surrogacy or IVF on moral or religious grounds. To them, I would suggest revisiting the story of the original unconventional family unit: the unmarried-at-the-time-of-conception, non-Christian asylum seekers who gave birth 2,000 years ago by a divine surrogacy arrangement to the baby Jesus.



POPE’S ATTITUDE TO BREASTFEEDING

The pope, at least, has no qualms about one aspect of modern parenting that tends to raise the ire of some of the more conservative elements in society. At a baptism of 32 infants in Rome last weekend, he invited mothers who needed to feed their babies to get on with it. “If they are hungry, mothers, feed them, without thinking twice, because they are the most important people here,” he said.

If he doesn’t have any problem with mothers breastfeeding their infants in the Sistine Chapel, maybe it’s time the rest of us relaxed about it too?

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