No legislation applies to surrogate motherhood in Ireland – the only regulation is by Medical Council guidelines, writes BREDA O'BRIEN.
SARAH JESSICA Parker, star of Sex and the City, is in the news because she and her husband commissioned a surrogate mother who gave birth this week to twins. Surrogacy is not exactly a modern phenomenon. It is even found in the Book of Genesis, when another Sarah, frustrated by her inability to have children, instructed her husband Abraham to have sex with her slave girl, Hagar. A son, Ishmael was born.
However, the account in Genesis is more of a cautionary tale than a ringing endorsement of complicated conceptions. When biblical Sarah miraculously gave birth to Isaac, she demanded that Hagar and Ishmael be cast out into the desert. Happily, Hagar and her son survived. Things have become much more complex since biblical times.
Unsurprisingly, the Abrahamic method of conception fails to find favour with wives. Modern-day surrogacy relies heavily on IVF.
There has been a lot of speculation as to whether Sarah Jessica Parker and Matthew Broderick used a donor egg, or their own embryos from previous IVF cycles. If the twins did not result from their own embryos, it is extremely unlikely that they used the surrogate’s own eggs. The infamous Baby M case in the 1980s concerned a surrogate who had used her own eggs and who refused to hand over her baby to the commissioning parents. After two years, the birth mother lost custody, but retained visitation rights. Since then, American couples have been very wary of using a surrogate’s own eggs.
If a couple uses a donor egg, or donor egg and donor sperm, the child has an even more complex set of parents. Children conceived by anonymous donation often suffer genetic bewilderment, deliberately cut off from family history, and from other siblings and family members. There are now numerous websites and organisations, mostly set up by children conceived through anonymous donation, campaigning against the practice on the grounds that it is deeply unjust to children.
When we see how important it was for survivors of industrial schools to locate siblings, or the anger of Maori children taken away and raised by white people, it should give us pause about the wisdom of ignoring the importance of genetic kinship.
Due to a court case taken by a woman called Joanna Rose in the 1990s, herself conceived by donor insemination, it is now illegal to donate sperm anonymously in Britain, and all children conceived since then are entitled to basic information. However, anonymous donation is legal in many US states. Surrogacy and gamete donation have become thriving industries there.
Officially, surrogates are only to receive expenses, but in reality, it can cost $20,000 to $100,000 (€14,200-€71,000) by the time you pay for eggs, sperm, surrogate, agency, and medical and legal costs. Like it or not, there is an aspect of “buying a baby”.
As Prof Margaret Little of Georgetown University has said: “You are selling use of the body, and historically, when that has happened, it has not been good for women.”
In her book Everything Conceivable, Lisa Mundy quotes Gail Taylor, who manages Growing Generations, a Los Angeles agency facilitating gay men in finding surrogates and egg donors. Egg donors, Taylor says, should be selected on looks, brains, youth, health and psychological soundness. Surrogates should be selected on how well they gestate babies and how well they work with others.
Perhaps that is why Europeans and Americans are flocking to India, where use of a woman’s womb comes cheap.
When the Commission on Assisted Human Reproduction (CAHR) was appointed by the Government to make recommendations on the Irish situation, only one member objected to surrogacy, stating that the risks of exploitation and commodification outweighed any possible benefits.
There is absolutely no Irish legislation in this area, and the only regulation is by Medical Council guidelines. Most European countries (including Ireland) and US states declare that surrogacy contracts are unenforceable, particularly since a woman post-partum is considered to be exceptionally vulnerable. Indeed, a 2008 Newsweek magazine feature reported that some surrogates are left desolate by having to give up the child. It is also extremely confusing for the surrogate’s own children, if she has any. Astonishingly, CAHR recommended legalising surrogacy, and automatically recognising the commissioning couple as parents.
Only a heartless person could fail to understand the longing for a child. No doubt many women who carry a child for someone else do so for the highest motives. However, being conceived in this way can be utterly confusing for children, although the full implications may not hit them until they become adults and have children of their own.
Carrying a child for nine months is just about the greatest act of intimacy possible between human beings. Children conceived through surrogacy often wonder how someone could bear to part with a child. It is not like adoption – a primarily child-centred process designed to find parents for a child in need. Surrogacy, especially involving donation of eggs and sperm, is designed to create a child to fill an adult need for children.
Recently, an Irish radio show ran an appeal for a woman to act as a surrogate for an Irish couple. (The item was sparked by seeing the couple’s advertisement for a surrogate in this newspaper.) Although well-meaning, the radio show risked landing all involved in an emotional and legal minefield. Although it has not been contested, it is most likely that an Irish court would consider the birth mother as the legal mother of the child. The only way to become the legal parents would be through adoption – an arduous process.
Any child, no matter what the means of conception, should be cherished. One can only wish the Parker-Broderick twins long life and happiness. And indeed, hope that the late Michael Jackson’s children, one of whom was born through a surrogate and the others almost certainly through donor sperm, will find stability and peace. However, if and when Irish legislators tackle assisted human reproduction, if they are genuinely concerned with children’s rights, the only option will be to ban surrogacy and anonymous donation.