Legislating for surrogacy will face many challenges


On the eve of a seminar on surrogacy, Carol Coulterargues that  any legislation in this area must consider  the human rights of  all involved

FOR COUPLES unable to have children, the use of a surrogate mother is becoming an option that, in certain jurisdictions, rivals foreign adoption. Between 30-40 IVF surrogacy procedures are carried out annually in the United Kingdom, but this does include those carried out abroad for UK couples, whose numbers are unknown.

There is no doubt that the practice has spread to Ireland, though no one knows to what extent or in what circumstances.

Surrogacy can arise in many circumstances. At one end of the spectrum might be a woman who for medical reasons cannot bear a child, but who is still ovulating, and whose plight arouses the sympathy of her sister or close friend to such an extent that she offers to bear a child for the woman and her partner.

At the other end is the infertile couple where the wife cannot, or does not want to, have children, and pays a woman in India or eastern Europe to do so instead. Commercial surrogacy is not permitted in the UK, but is in a number of other jurisdictions.

A web search brought up a number of advertisements based in the US and other jurisdictions, typical among them the one which stated: “India Surrogacy Clinic, package cost US $22-35K, no wait, top hospital, payment plan available”.

In between are a number of permutations, including where the woman produces eggs but cannot bear a child, where either she or her partner is infertile and requires a donated egg (from the surrogate or someone else), or sperm, or a gay couple who want children bearing their genetic material and use surrogates to provide both the eggs and the womb.

What is certain is that the legal status of children born to one woman, but taken and nurtured by another and her partner, to whom the child is linked genetically, is unprovided for under Irish law. While the issue was examined by the Commission for Assisted Human Production, its report has gathered dust in the Department of Health since.

Under Irish law the woman who gives birth to a child is its mother. That can change through adoption, but adoption is a regulated process whereby the HSE assesses a couple’s suitability to adopt, and the adoption is registered by the Adoption Board when it meets the necessary legal criteria. The child of a married couple (and many surrogate mothers are married) cannot be adopted, other than in the most exceptional circumstances.

A private adoption, which is what would be involved in the adoption of a child born to a surrogate, is illegal under Irish law. Payment for adoption is also illegal.

So what could a couple do if they travelled abroad in order to achieve a surrogate birth? A recent TG4 documentary on surrogacy examined the practice in India, where it has become something of an industry, and revealed the falsification of birth certificates by the clinics involved, to show the putative mother as the actual mother of the child, with no acknowledgement of the existence of the surrogate. However, it would be a very credulous consular official who believed that a couple from a well-resourced western country travelled to India to have their child in a clinic there, rather than in the comfortable and familiar surroundings of their local hospital.

The Government cannot postpone forever considering these issues, and the others raised in the report of the Commission on Assisted Human Reproduction. Legislation will have to come. But it is important that such legislation is based on a serious consideration of the rights of all involved, and not just the often desperate need of infertile couples to have children.

Ireland is a signatory of the UN Convention on the Rights of the Child, which guarantees the right of children to know their parents, and as far as possible, to be cared for by their parents; the right to an identity, that is, an official record of who they are; and the right to live with their parents, unless this is bad for them. At first sight, these rights would seem to be at least put in question by some of the circumstances in which surrogacy is used.

The other rights that are involved are those of the surrogate mothers. While there may be a minority of surrogate mothers who do this for altruistic reasons, for example for someone they are close to, the vast majority offer the use of their wombs for money. Increasingly, relatively wealthy couples from the west use the services of women from much poorer countries.

This will often involve these women cutting themselves off from their families, including their own children, for the period they are gestating the child. They will take on the risks of childbirth for a child they will never know. If the pregnancy does not go to full term, or the child does not live, they are unlikely to be paid. Some will inevitably suffer psychologically from giving birth to a child from whom they will be immediately parted. The whole process is likely to be very alien to their culture.

It is arguable that their human dignity and right to bodily integrity is infringed, and the rights of their own children to the society of their mother may be compromised.

Of course, it will be said they are not forced to be surrogates. They do all this voluntarily – as voluntary as a contract can ever be when there is such an imbalance in wealth and power between the parties.

When we come to legislate on this complex issue, we must bear in mind the ethical issues and human rights of everyone involved.

The Family Lawyers Association is hosting a seminar on surrogacy at 5.30 pm on Wednesday, April 21st in the Distillery Building, Church Street, Dublin 7, with keynote speaker US expert John Weltman