Recent days have seen posters from those against marriage equality urging people to vote No to surrogacy. However, there is no evidence to link surrogacy to gay marriage.
At the moment surrogacy is not legal in Ireland. Legislation to regulate it has been promised by the Government, but it is unlikely to be enacted before the election. It will then be up to the Oireachtas to restrict surrogacy in any way it chooses.
Even where surrogacy is regulated, there is little reliable data on who is using it, who is providing it, and what ethical, legal and human rights issues have arisen.
One of the few significant studies has been carried out by the University of Huddersfield Repository, which collects, analyses and makes data publicly available. Using both data from organisations involved in surrogacy and UK government data on parental orders (which give legal parental rights to couples using surrogacy), the university was able to produce an authoritative analysis of trends in the UK, which are probably the best indicator of what might happen in Ireland if we follow their legislative regime.
The first thing that is clear from this study is that the majority of those having recourse to surrogacy are heterosexual couples, usually married, seeking to establish a family composed of a mother and a father with the maximum possible biological link to their child or children – a “traditional family” as understood by most people.
Under the UK’s 1990 Human Fertilisation and Embryology Act, commissioning parents had to be married, aged over 18, domiciled in the UK and at least one had to be the child’s genetic parent. Commercial surrogacy was not allowed. The Act provided for “parental orders” making the commissioning parents the legal parents of the child.
In 1995, the first year of its operation, there were 50 parental orders made, and from then until 2007 there were between 36 and 51 annually, rising to 83 over the next three years.
In 2010 the law changed to allow same-sex couples and unmarried heterosexual couples in “an enduring family relationship” to avail of surrogacy arrangements. In 2011, the first full year of the new regime, and the most recent for which figures were available to the study, saw a jump to 149 parental orders.
While there has been no consistent collection of data on who was seeking the orders, the Huddersfield study cites figures from the government agency Cafcass that there were 29 successful gay couple applicants and three successful lesbian couple applicants for parental orders that year. This probably includes some pent-up demand. The study suggested much of the rest was accounted for by unmarried people in “an enduring family relationship”.
The authors also speculate that some of the increase was accounted for by a growth in surrogacy arrangements made abroad.
So, in the UK, which has a liberal surrogacy regime, in the last year for which Huddersfield had figures almost 80 per cent of applicants for parental orders were heterosexual couples, and the majority of those were married.
One thing is for certain – surrogacy is an option only open to the well-off. Increasingly, people travel abroad for surrogacy arrangements and surrogacy in the US costs about $100,000, and about half that in other countries. The childless poor, whatever their marital status or sexual orientation, just have to accept their plight. On the other hand, surrogate mothers are usually poor and may be open to exploitation.
Marriage in itself does not convey a right to assisted human reproduction, especially surrogacy. A number of European countries, including France, Germany, Italy, Spain, Portugal and Bulgaria, ban surrogacy, irrespective of the gender or marital status of the prospective parents.
There are good reasons for their concern about the use of surrogacy in family formation, particularly in relation to the possible exploitation of the surrogate mothers and inattention to the rights of children to their identity.
Emotional risk
There are no international conventions regulating it, and, as the authors of the Huddersfield study point out, “[exploitative] developments could include financial risk to the adults concerned, physical and emotional risk to both adults and children concerned and failure to afford due dignity and attention to the children and to the formation of family life.”
They point to the concern among social workers internationally that the regulation of inter-country adoption through the Hague Convention on Inter-Country Adoption is driving an increased recourse to global surrogacy among those seeking to form families.
“Not only do [the arrangements] involve commercial elements that are illegal in the UK, but they have also involved medical procedures considered to be poor practice both medically and psychologically,” they write.
This study highlights the need for much more research into both the provision and the implications of surrogacy, and the need for an international convention to regulate it. Hopefully all these issues will be discussed when legislating for surrogacy arises here.
But what we do know about it so far is that it has nothing to do with the right of same-sex couples to marry.
Carol Coulter is a former legal affairs editor with The Irish Times and is director of the child care law reporting project. She is writing here in a personal capacity.