Hard case makes bad surrogacy law

Legislating for surrogacy has been put back on the agenda by the recent High Court ruling that the genetic mother of twins, rather than the woman who bore them, should be declared their legal mother. During the case counsel for the State, Mary O'Toole SC, said the Minister for Justice intends to publish the heads of a Bill dealing with the issue this year.

Nonetheless, it is unlikely legislation will happen quickly, representing as it does a legal and ethical minefield. The High Court ruling, while it settled one question, did not settle most of those posed by the Commission on Assisted Human Reproduction (CAHR) in its report eight years ago. Further, the passing of the Children’s Rights amendment to the Constitution, even though it is not yet law, could further complicate the matter, as it introduces the principles, if not the letter, of the UN Convention on the Rights of the Child into the Constitution.

One key provision of this convention is the right of the child to his/her own name and identity, to be raised by his/her parents in a family and to have a relationship with both parents. The implications of these rights for children born through surrogacy were not explored by CAHR but, following the passing of the amendment, they will have to feature in any future debate on surrogacy.

What is the meaning of the word “parents” in this context? The presumption normally is these are the biological parents of the child, though international adoption law recognises they can be replaced by others when that is in the child’s best interests. Surely the right to an identity includes the right to know one’s genetic heritage, as well as the identity of the person who gives birth to one? How can that be guaranteed in the context of surrogacy?

It was difficult not to sympathise with the plight of the women in the recent surrogacy case. The surrogate mother was the sister of the woman whose eggs were used, and therefore had a close genetic link to the children, and acted out of altruism. No commercial transaction was involved, and no-one was exploited.

Industry standards
But this is not the case with the industry that has grown up around the technological possibilities for surrogate parenting.

A characteristic of this industry is the use of women from poor backgrounds in developing countries or impoverished European countries (and also in most US states) to bear children for people in the West who, typically, are many times better off. The genetic material can be provided by one or both of the commissioning parents, or by donors. Typically the transaction is mediated by an agency.

The money that changes hands in this process is sometimes described as "expenses", but few are under any illusion that what is involved is not a commercial transaction, and in India and the US there is no attempt to pretend this is not so.

With such a major imbalance in money and resources between the commissioning parents and the surrogates and donors it is difficult to avoid the conclusion that exploitation is involved. Would a poor Indian woman separate herself from her own family for nine months, live in a compound with others similarly involved in breeding children for others, and then hand over the child, if a significant financial inducement was not involved?

In recommending the regulation of surrogacy, the CAHR stated very clearly it was opposed to any commercial element in a surrogacy arrangement. But the safeguards it proposed were insufficient to ensure this does not take place.

It stated the surrogate mothers should only be paid “reasonable expenses”. But that is what payments are called in many instances where clearly payment is taking place.

By refusing to recommend the surrogate mother should be resident in Ireland it allows for Irish commissioning parents to engage in surrogacy tourism, beyond the gaze of Irish regulatory authorities. It stated the child should be able to identify his/her genetic parents and surrogate mother only "where possible", which surely contravenes the UN Convention on the Rights of the Child.

Infertility is an affliction that causes great pain, and technology has been of assistance to some couples, notably through IVF. But technology cannot fix everything. There is no “right” to procreate and not everything can be – or should be – available for a price, especially if this involves exploiting someone else.

This is not to say that the only families that should be permitted are the nuclear family of two parents and their biological offspring. This has never been the only family form in existence, and swathes of humanity do not regard it as the norm, living instead in various kinds of extended family, including polygamous families. Arrangements where children are fostered, adopted, wet-nursed or farmed out to childless relatives, not to mention where problems of infertility in families have been overcome through the impregnation of servants, have existed for millennia.

We are living in an era with a new focus on the rights of children and knowledge of developmental psychology. We know from the testimonies of those who were adopted from here in the 1940s and 1950s, and indeed other adopted people, the issues of origin and identity are of crucial importance to the formation of the self. The adoptions that take place in Ireland today take account of this knowledge.

This focus cannot be lost when we come to discuss surrogacy, and the lure of technological possibilities should not dazzle us to the extent that we lose sight of ethical considerations and the human rights of all involved, including the right not to be exploited.