Surrogacy: A legal quagmire

RTÉ performed a major public service on Monday evening with the screening of Her Body, Our Babies.

The documentary focused on the journey undertaken by a Co Clare couple to access a surrogate mother in India, and ultimately take their newborn twins home to Miltown Malbay. In terms of surrogacy, the screening effectively marched the issue to the gates of Leinster House.

Surrogacy is one of those issues that has a unique existence in this country. Like abortion, it doesn’t officially exist. Like more conventional assisted human reproduction, it has no legal standing. And like abortion, assisted human reproduction and assisted suicide, it raises the type of moral questions that politicians are wholly unwilling to address, thereby consigning thousands of citizens to further anguish and worry.

The programme was both riveting and entirely discommoding. The couple, Fiona Whyte and Seán Malone, came across as honest and loving, but they were not typical of those who are accessing surrogacy abroad in increasing numbers. Fiona and Seán are in their early 50s, and both already have had children through previous relationships.

While they were fiercely keen to seal their relationship with a child, they weren’t burdened with the primal desperation to reproduce felt by some childless couples or single people.

Neither were they of an age when nature, with even a lot of luck, might be expected to acquiesce to their efforts to conceive. In this regard, the programme couldn’t convey the sheer desperation that informs the decision of many who ultimately dispute nature’s harsh judgement, and seek out surrogacy.

The threat of exploitation hung over the whole programme. In the absence of laws, in this jurisdiction, anything goes. The featured couple travelled to India to access both procedure and surrogate mother. As with other developing countries the scourge of abject poverty in India creates its own desperation. As such, there is a production line of young, healthy, impoverished women ready to offer their bodies.

The surrogate, Shobha, was paid around €5,000, or so the couple were told. The programme stated that this equated to what she could expect to earn over two decades.

In a country where human and civil rights are often subjected to filtering by a caste system, and where women are yet to achieve a modicum of equality, there is no guarantee that she was paid that amount.

During the pregnancy, she was kept in a “surrogate house”, which the couple were not permitted to visit. They were shown photos of bare rooms, that were more prison cell than nurturing space. In fact, the Irish couple appeared to display more concern for Shobha than the people running the clinic or the hospital where the babies were born.

Once Shobha was discovered to be pregnant with triplets, the rules of the clinic meant that one of the three foetuses had to be destroyed, to protect the surrogate’s health, and, presumably, to increase the chances of a full and healthy birth of at least one baby. The procedure was described as “foetal reduction”, but it amounted to an abortion. This wasn’t a scenario where the mother’s health was in danger, not to mind her life. Neither was it one which required dealing with an unwanted pregnancy. It was instead the selection of foetus for termination on the basis that it was deemed excess to the requirements of the pregnancy.

What if one of the remaining twins had been born with an obvious disability, or deformity? Would he or she be travelling back to Ireland with a healthy sibling? The moral dilemmas lurk in the issue of surrogacy are inflated by the economic chasm that exits between the prospective parents, and their world, and the surrogate and hers. In this scenario, exploitation hovers like a threat over every step of the journey. Back home, the couple must negotiate a legal wild west.

They were informed by a solicitor that the births must be registered through the courts, with legal fees of between €7,000 and €10,000, about twice the fee due to the woman who carried the babies for nine months.

Temporary travel documents were issued for the twins to allow their entry to their new home in Ireland. They are, legally, stateless. As Fiona has no genetic relationship to her new children, she can’t be recognised as guardian. She is the mother who will rear the children, but without any maternal rights. Seán, the biological father, is the sole guardian.

THERE are remedies to the legal quagmire. The Government could legislate for surrogacy, which would at least ensure that the children are legally cherished with the same rights as their school friends. Legislating would require that standards are observed, as is the case with, for instance, foreign adoption. This might give the OK for surrogacy in places like Greece and the US, but refuse to recognise it in India, or other countries governed by lax rules.

None of it would be easy for a body politic that was dedicated to governing. In the system that pertains this country, any instinct to govern is smothered by a fear of inflaming rage among sections of the electorate.

Monday’s programme highlighted the need for legislation in the whole area of assisted human reproduction. Eight years ago, a government- appointed expert group, the Commission on Assisted Human Reproduction, reported in detail on the legislative way forward. Nothing has been done. The thousands who access procedures like IVF go where no law exists. The same applies to surrogacy. As an issue, it won’t go away, but form suggests we will have to wait a long time before the legislature tackles it.