Second Opinion: Surrogacy laws must put children first

The recent Supreme Court judgment that the woman who gives birth must be the mother named on the birth certificate was fair and best for children. The Irish Human Rights Commission submitted that "the State, having failed to regulate or restrict the right of persons such as the third- and fourth-named respondents [the egg and sperm donors] to found a family by way of surrogacy, the State cannot deny such persons parental status or prevent the first- and second-named respondents [the twins] from being members of that family".

Fortunately, for motherhood, fatherhood and children, the Supreme Court decided otherwise. The State was not, in fact, denying the donors of the egg and sperm the right to found a family, it was simply saying they could not be named on the birth certificates as the legal parents and would have to adopt the children born through surrogacy in the normal way.

This is reasonable. Thousands of people in Ireland have adopted children, become parents and founded families through legal processes. Donating eggs and sperm and using a surrogate mother does not automatically make anyone a parent.

Lack of regulation should not be conflated with freedom and choice. There are some things that are just plain wrong, and surrogacy is one of them. It devalues the foetal-maternal relationship, subordinates the child’s or children’s rights, redefines motherhood and turns pregnancy and babies into commodities.

Instinctive bonding

Surrogacy is about meeting the needs and wants of adults by objectifying and subordinating the welfare of surrogates. Pregnant women bond with the babies they carry, whether the children are genetically theirs or not. This bonding is instinctive and millions of years old, and to pretend it can be switched off in a surrogacy arrangement is nonsense.

A 2013 European Parliament report, A Comparative Study on the Regime of Surrogacy in EU Member States, shows surrogates have to reinvent themselves in order to cope with the psychological impact of relinquishing the child to the commissioning parents.

The impact can include guilt, loss, pain and despair. Surrogates deploy “cognitive dissonance reduction strategies” to mitigate the effect, with long-term consequences for the mothers and children. Cognitive dissonance is based on the theory that everyone has an inner drive to have their beliefs, attitudes and behaviour in harmony.

When instincts urge one action and the real world urges another, most people invent a comfortable illusion called denial. Everyone does it to some extent. Smokers do it by convincing themselves they will be one of the lucky ones who will not develop cancer. Women who agree to be surrogate mothers lie to themselves for nine months to avoid cognitive dissonance. Egg and sperm donors delude themselves by believing donating genetic material makes them parents.

Motherhood begins during pregnancy. Fatherhood also begins during pregnancy, and prospective fathers usually feel protective towards the woman carrying their child. Men who donate sperm to a woman who is not their partner experience cognitive dissonance.

Ireland is not the only EU country to have no laws regulating surrogacy. The European Parliament report concludes: “It is impossible to indicate a particular legal trend [on surrogacy] across the EU, however all member states appear to agree on the need for a child to have clearly defined legal parents and civil status.”

Cross-border surrogacy

Some European countries, including Germany and Finland, forbid surrogacy, whether altruistic or not. Others, such as Ireland, have made no legal provision for it although there are guidelines relating to cross-border surrogacy. The Netherlands and Belgium allow it. In most EU member states motherhood is attributed on the basis of parturition – the woman who gives birth. Formal adoption by the genetic parents must then take place, if legally permitted.

Article 16 of the Universal Declaration of Human Rights, which says “Men and women of full age . . . have the right . . . to found a family”. should not be interpreted as meaning a right to have one’s own genetic children at any cost, including the health cost to surrogate mothers, the infants who do not survive the procedure, and society. The issue is whether the right to found a family through assisted reproductive technologies overrules other people’s rights such as those of the surrogate mother and child or children.

Although the need to be a parent of one’s own genetic child or children is deeply rooted, this does not mean the State must enact laws to enable that need to be met through surrogacy. Any surrogacy laws enacted in Ireland must put children’s rights and needs first.

Jacky Jones is a former HSE regional manager of health promotion and a member of the Healthy Ireland council.

drjackyjones@gmail.com