Ukraine is foremost in our thoughts and on the airwaves these days. Our heartfelt sympathy for that invaded and violated nation must not blind us to the problems that surround the practice of surrogate parenting often associated with the country. In Ireland, surrogacy is neither legal or illegal.
The Government recently announced the setting up of an Oireachtas committee to examine the issue and to recommend legislation that will, in the words of the Minister for Justice, ensure "the rights, interests and welfare of all persons involved in international surrogacy".
This means that any legislation will have to give fairness to the surrogate mother, from whose body the child enters the world, to the child, and to those who are referred to as “the intending parents” who have supplied the egg which develops into the embryo and the human person.
When people adopted children in the mid to late 20th century they did not foresee the difficulties coming down the tracks
The war in Ukraine and the effort to bring the babies born to surrogate parents safely to Ireland have caused us to look deeper at this issue, to which there are many facets – emotional, legal and ethical.
Three, in particular, are pertinent, namely, possible exploitation of the surrogate mother, transparency of the transaction that takes place between the parties, and potential for future conflict which could embroil all the three parties.
As I understand it, people who currently use surrogate mothers so as to have children operate on a commercial basis. Legal people are involved in negotiating a contract whereby the intending parents pay a sum of money, part of which will be used as payment to the woman who is chosen to bear the child.
Large sums of money have been rumoured to be involved and it is believed that the surrogate mother receives just 10 per cent of the payment. In the absence of transparency, there is no way of knowing.
Do the intending parents have any control over how much money is paid to the woman who is to give birth, or is it channelled through a third party? Even if the sum paid to the surrogate mother was to be greatly increased, how much is known about her circumstances? Is this woman freely giving her consent or is she being forced into this financial arrangement by a member of her family, or indeed by a profiteering entity?
Under Irish law, the child’s mother is deemed to be the person who gave it birth. This means that, legally, the child’s mother is not the intended parent and the intended parent cannot apply under non-existent law for parental rights, but can apply to adopt the child.
Does the birth certificate reflect the birth history of the child? Transparency demands that such a document state that a surrogate parent exists. This record is vital in the personal history of the child.
It is possible that the surrogate mother can legally allow the intending parent to be named as the parent, and this may be one of the benefits for people who decide to use a surrogate parent in Ukraine, but if we have learned anything from the discussion around adoption it is that signed legal consent is one thing but the feelings and emotions that surround child birth is quite another issue.
Will the Irish State find itself being charged with neglect for allowing a system to exist that lacks accountability?
It is precisely these emotions that can give rise to future conflict. When people adopted children in the mid to late 20th century they did not foresee the difficulties coming down the tracks. Adoption was seen as a solution for all parties – the woman who gave birth got secrecy; the childless couple got a child. The child could be legitimised and be spared the burden of being termed “illegitimate”.
The process, well intended in many cases, led to unforeseen difficulties. Surrogacy is financially based and money often gives rise to conflict if people believe that they were not adequately recompensed.
Will the Irish State find itself being charged with neglect for allowing a system to exist that lacks accountability? The State already acknowledges the practice as evidenced by references to the difficulties facing the people who wished to travel to Ukraine to bring the children to Ireland.
Little mention has been made of the plight of the Ukrainian women who gave birth to the children in a war-torn country.
The State now has to find its moral compass in dealing with the complexities around surrogacy. It has to decide to either outlaw or regulate the manner in which one woman pays another woman to bear a child which she then will raise as her own. Whatever the outcome, it is important that the ethical issues be debated.
Margaret Lee is a retired social worker who worked in the voluntary and statuary services with children and families