Surrogacy is not a red herring in this debate

The 1991 Supreme Court ruling provided that the right to procreate children was one of the unenumerated right guaranteed by Article 40 of the Constitution.

The referendum is about marriage, so why is surrogacy dominating the debate? Louise Doris looks at how a Supreme Court ruling recognised the right of married couples to ‘beget children’ 

On Friday, people will vote for or against changing the Constitution to allow two people to marry, regardless of their sex.

That is all the ballot paper says. So where has the idea come from that this referendum has anything to do with surrogacy? Is this claim legitimate, or is it just scaremongering by the no side?

In 1991, the Supreme Court gave its decision in a case taken by Noel and Marie Murray, both of whom were serving life sentences for the murder of a garda. The Murrays wished to exercise their right to conjugal relations in order to have a child. The court refused their claim but held that “the fact that the Constitution so clearly protects the institution of marriage necessarily involves protection of certain marital rights, which include the right to beget children”.

READ MORE: Marriage Equality Referendum: Answering key questions

Judge McCarthy declared: “The right to procreate children within marriage is not expressly stated in the Constitution; it is one of the unenumerated rights guaranteed by Article 40 as being essential to the human condition and personal dignity”.

The court thus recognised, as a constitutional right, the right of married persons to “beget children” or “to procreate”.

What does this mean for the referendum? If the right to marry is extended to same-sex couples it would strengthen significantly claims by same-sex married couples for access to the means by which they could realise their new constitutional right to procreate.

These means include donor-assisted human reproduction (DAHR) and surrogacy. Any attempt to prohibit or restrict DAHR or surrogacy would become vulnerable to constitutional challenge on the basis that it violates the right to procreate of same-sex married couples and is, therefore, discriminatory.

No country in the world has given same-sex couples a constitutionally protected right to procreate. Moreover, Ireland currently has a completely inadequate infrastructure of laws governing assisted reproduction.

This complete absence of regulation, combined with a constitutional right to procreate for same-sex married couples, would make Ireland extremely vulnerable to becoming a hub for the globalised, commercialised assisted reproduction and surrogacy industry.

The Children and Family Relationships Act, insofar as it covered assisted reproduction, only addressed the issue of assigning parentage following DAHR. It did not introduce a regulatory regime or regulatory authority for assisted reproduction.

READ MORE: Marriage Equality Referendum: Answering key questions

Visit our special Referendum 2015 section for all the latest news and analysis

The Government is now preparing a draft bill for the whole area of assisted reproduction including surrogacy. France, Germany, Spain, Italy, Switzerland, Malta expressly ban surrogacy because of ethical concerns around the commodification of children and the exploitation of women.

Even in countries with formal bans on surrogacy, those bans have come under pressure following the introduction of same-sex marriage. In Spain, there has been a protracted legal battle between the Spanish authorities and a married same-sex male couple who had twins via surrogacy in the US, and who now want the Spanish courts to recognise their “dual paternity” in relation to those children.

In France, a new Loi de Famille (Family Law) was planned to accompany same-sex marriage. That law would have extended the right to assisted reproduction to lesbian couples and would have decriminalised contracts of surrogacy, which would have had the effect of enabling male same-sex couples to have a child by combining access to assisted reproduction with contracting a surrogate.

Huge protest rallies across France forced the French government to abandon those plans, for now.

The Government here has already rejected the option of banning surrogacy. The draft heads of the proposed assisted reproduction and surrogacy bill make it clear that the Government plans to legalise and legitimise the practice of surrogacy.

The legislation will, for the first time in Irish law, allow a mechanism for a surrogate birth mother to relinquish her status and transfer parentage to a commissioning couple.

The commissioning couple will be allowed to pay the surrogate “reasonable costs”. No figure has been defined, which may prove problematic in ensuring payments relate totally to costs incurred.

Health Minister Leo Varadkar says that out of respect for equality and non-discrimination the legislation “won’t discriminate against people on the basis of their relationship status or their gender or their sexual orientation”.

He said he would also “facilitate transfer of parentage of children born to surrogates abroad”.

Surrogacy clinics and agencies are enthusiastic about both the referendum and the prospect of surrogacy-friendly laws being passed.

One such clinic, Oregon Reproductive Medicine, has already opened an office in Dublin. It’s one of the world’s leading clinics for same-sex family formation via surrogacy and holds regular information seminars here aimed at same-sex couples, particularly “intending fathers”.

An event in November was entitled The Future of Same-Sex Parenting in Ireland. The same clinic participated in a conference in Brussels this month entitled, Men Having Babies: Parenting Options For European Gay Men.

Currently, such clinics are operating in a legal vacuum. A yes vote in the referendum and the proposed surrogacy legislation would put them on more sure legal footing.

Cross-border surrogacy is a huge business involving surrogacy agencies, surrogacy brokers, egg brokers, and law firms specialising in surrogacy contracts.

The US and India are popular surrogacy destinations. Emerging destinations include Mexico and Nepal. Women in impoverished countries are, obviously, particularly vulnerable to being exploited.

Because surrogacy arrangements often involve a separate egg donor and gestational surrogate, the resulting child will have no clear biological mother, in addition to having no legal or social mother if the commissioning couple is two men.

The confluence of globalised, commercialised assisted reproduction and the advent of same-sex marriage challenges national family laws in a profound way and places legal institutions at a difficult intersection of contrasting laws and rights.

So, while surrogacy has become a dominant theme in the marriage referendum and has been referred to as a red herring designed to provoke fear and moral panic, it is, in fact, a legitimate topic of debate in this referendum and one that, arguably, requires much more ethical discussion before the Government’s plans in the area of surrogacy become law.

Louise Doris is a final-year PhD researcher at the European University Institute, Florence. Her doctoral thesis is a comparative study of assisted reproduction laws and surrogacy laws in European countries. She studied law at Queen’s University Belfast, has a Masters in medical law and ethics from King’s College London and aMasters in legal research. She also worked at the Bioethics Department of the Council of Europe, Strasbourg, and was a visiting scholar at Yale Interdisciplinary Center for Bioethics. Her areas of expertise are bioethics, the regulation of donor assisted human reproduction, and surrogacy law.

READ MORE: Marriage Equality Referendum: Answering key questions

Visit our special Referendum 2015 section for all the latest news and analysis


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