Not all surrogacy cases end up bogged down in legal problems. Just ask James and his wife Kate. The Irish couple had their second child earlier this year via a surrogate mother in the US. It was the only option was available after Kate developed medical problems during the birth of their daughter, which resulted in a hysterectomy.
"We didn’t even look at the Ukraine or India - instead we looked at what was available in the US. We literally started googling surrogacy clinics and then came across Circle Surrogacy in Boston, which we liked the sound of,” says James.
The agency, founded by US lawyer John Weltman - who is a father by surrogacy - has helped around 20 couples from Ireland use surrogate mothers over the past decade or so. But it comes at a cost.
James and Kate were told they would face a bill of around €85,000, so they organised a loan from a financial institution for “an extension to the house”, rather than going into the details with bank officials.
After a series of interviews with the US agency, they were finally linked up with a surrogate mother, a 36-year-old married woman based in Indiana.
“We went to meet her and her husband at the Pizza Hut in their home town,” James recalls. “Their kids played around in the play area and we talked. She explained that she was doing it because she lost one of her five children during birth. She said she wanted to give birth once more for closure, that she was doing it for her own reasons.”
After signing various legal documents, James' sperm was fertilised with wife’s eggs in the US. The resulting embryos were then transferred to the surrogate mother. James and Kate kept in regular contact by phone or Skype with the surrogate mother during the pregnancy (the agency encourages weekly contact between couples and surrogate). Then, almost nine months later, James and his wife headed back to US for the birth.
They had worried about whether the child would be okay. But they were even more anxious about how difficult it would be for the surrogate mother to hand over her new-born child to them. They had heard the scare stories of surrogates who wanted to hold onto the children once they had given birth to them and didn’t know what to expect.
In the end, they needn’t have worried.
“There was no awkwardness,” says James. “We were all in the hospital together. The nurse asked who should cut the cord, and the carrier’s husband did... Then, the baby was handed to us and I put the first nappy on.
“My wife held him, and then asked the carrier if she wanted to hold the baby. It was all fine. She was happy about it all; she was in a good place. She wasn’t clingy or anything, because this was something that she wanted to do.”
Under the laws which facilitate surrogacy in Indiana, James and his wife were able to arrange via a pre-birth order that their names would appear on the birth cert of their son as soon as his birth was registered.
As a result, their son had US citizenship and they returned home to Ireland shortly afterwards. In contrast to surrogate babies born in the Ukraine or India, they didn’t have any legal problems because of the lack of visa requirements for US citizens. Later on, they secured an Irish passport for their son.
“It was a very happy outcome. We were very lucky and very fortunate, as we’ve heard stories where the carrier lost the baby... I wouldn’t criticise anyone for heading to the Ukraine or elsewhere. But we were lucky enough to have had the money to go the US,” says James.
“At home, no one batted an eyelid. The only downside was we didn’t qualify for paternity leave or adoptive leave. Because there’s no law, you just fall through the cracks.”
Both parents say legal advice and careful planning can help ensure children can be born by surrogacy without ending up in legal limbo.
Nevertheless, they say much more needs to be done to recognise and support parents of children born by surrogacy.
“Ours is a very positive story. We’re so happy to have our son,” he says. “We always wanted a companion and a friend for our daughter. We didn’t want her growing up as an only child. And now we have that.”