In the recent surrogacy case involving twins where the genetic mother’s sister acted as a surrogate, I was struck by one aspect of the commissioning woman’s argument for recognition as the children’s mother.
Admittedly, a legal team will submit every possible argument on behalf of a client, even peripheral ones, but this one does provide food for thought.
The applicants submitted: “Not recognising CR as the mother has an implication for the [constitutional] right to marry. If in law the twins are the children of the genetic mother they would be first cousins of the children of the sister. Under Irish law one is entitled to marry one’s first cousin. If they’re treated in law as the children of the sister, they could not marry their siblings.”
The chances that these cousins would ever want to marry are presumably virtually non-existent. But even as a thought experiment, it shows that the implications of this judgment go far beyond genetics. Under this ruling, they would be legally entitled to marry, despite the fact that they were carried in the same woman’s womb, and she even provided breast milk.
Splitting of motherhood
Mr Justice Henry Abbott found that the principle mater semper certa est ( the mother is always certain) was no longer relevant given that IVF allows one to split motherhood into two or more parts. However, that principle has been considered important enough to have been widely applied in European law either to ban surrogacy outright (as in Germany, Austria, France, Switzerland, Sweden, Norway, Italy and Bulgaria) or to make surrogacy contracts legally unenforceable (as in the UK).
Simply because science or medicine allows something, does it make it right, or in the best interests of the children? IVF, where the egg and sperm donor are the parents, and the mother carries the baby, is a difficult, stressful, expensive procedure with a high failure rate. However, when all embryos are fully protected and IVF succeeds, it could be argued that all it does is to help nature along.
Once third parties enter the frame, the situation becomes much more problematic.
Yet on the same day, Judge Abbott also found in favour of a man who was applying to be recognised as a child’s legal father, in a case involving an Indian surrogate mother. In that case, it was the father’s sperm and an anonymous donor egg. Following the judge’s own logic, the legal mother must be the anonymous donor. How will the child’s right to knowledge of this “blood link” be vindicated?
This second, less publicised case also has other far-reaching implications. There are numerous organisations that have grave concerns about “outsourcing” pregnancy to poor women in India, such as the Indian women’s and girls’ advocacy group, the Centre for Social Research. It argues the practice is exploitative and even life-threatening.
In May 2012, Premila Vaghela, a 30-year-old surrogate died in the eighth month of her pregnancy. In another case, Sushma Pandey, just 17, reportedly died after egg-harvesting procedures in Mumbai two years before that.
In a recent US case, a commissioning couple put immense pressure on a surrogate mother to abort when the baby was found to be disabled. The surrogate mother moved 700 miles so she could give birth in a state where she would be recognised as the mother, and gave the baby up for adoption. It then emerged that the commissioning woman had used a donor egg without informing the surrogate mother.
We know from numerous examples – from people brought up in industrial schools who desperately want to trace siblings, to adopted people who want to know the identity of birth parents – that it is vital that people have the right to know the identity of their biological relations.
Joanna Rose is a young woman who was conceived through anonymous sperm donation, a procedure much older than IVF. She forced a change in UK law, which as a result now bans anonymous donation of sperm and eggs, because the courts recognised it was actively harmful to conceal such information from children. Yet Irish fertility clinics continue to offer anonymous donors.
The key principle must be the best interests of the child. In adoption, a child already exists, and needs a family. Bringing a child into existence in a situation where the birth mother is supposed to detach from the child from conception is an experiment with untested outcomes.
Everyone sympathises with infertile couples, but where do we draw the line? Are grandmothers acting as surrogates different from sisters, given that both would have equally altruistic motivations?
We need legislation, but given the minefield that surrogacy opens, on ethical, psychological and legal planes, the best possible outcome for children would be to regularise the situation of already-existing children, and then ban the practice outright, as many of our European neighbours do.