Surrogacy ruling: Children cannot be made ‘to order’

The Children and Family Relationships Bill does not value marriage and constitutes a far-reaching attack on the needs and rights of children, suggests Ray Kinsella

LAST week’s Supreme Court ruling on surrogacy and on the issue of how we define “motherhood” demonstrates the crisis that now exists at the heart of our engagement with the rights of the child.

The relationship of the child with its natural mother and father shapes the child’s sense of self and identity. Both of these are central to the child’s emotional and psychological development. There is a grave danger that pending legislation will fail to vindicate this right.

Motherhood, and all that goes with it, is enormously sensitive and complex. But what was once taken for granted about motherhood, as a matter of common sense and “rightness”, has been corroded by three factors.

The first is technological development in assisted human reproduction. Secondly, surrogacy has been pushed to, and beyond, all boundaries. The third is an aggressive secular culture that prioritises the wants of adults over the needs and rights of the child.

In the wake of the Supreme Court’s decision, the tensions and anomalies that have arisen from the State’s failure to uphold, and support, the natural family are now clear to see. That is, the tension that can arise between the genetic mother and the birth mother.

Equally, there is a real possibility that a child conceived through assisted human reproduction and using surrogacy could end up with three or more mothers. There is the reality that the birth mother may, as a surrogate, be living — often in great poverty — thousands of kilometres from the child. There is also a possibility that an infant commissioned by adults may be rejected by those very adults after nine months.

Assisted human reproduction and surrogacy are now very big business. The consequence is that a newborn is increasingly the subject of a commercially-driven contractual arrangement rather than a loving relationship with its natural mother and father where this is possible.

This is hardly what most TDs, to whom the Supreme Court has effectively delegated the issue, wish to see in legislation. But that is what is in prospect under the Children and Family Relationships Bill. Its core provisions constitute a far-reaching attack on the needs and rights of children. Mothers and Fathers Matter is an advocacy group established to amend the bill.

What has largely created this problem is the failure of the State to support, at every level, the family as defined in the Constitution, and to put the needs of the child first. The last thing we need is rushed and ideologically-driven legislation on this most important and sensitive issue. The Irish Water debacle, and the rush to legislate, is a deeply uncomfortable but compelling parallel.

The vast majority of people see every newborn infant as an expression of love, and infinitely lovable. Infants come in all shapes and sizes.

The bill opens up a wholly different view — one that views a baby as essentially a consumer good subject to the laws of consumer choice, supply, and demand. It is one in which adults can specify the physical and psychological parameter of a child, from its ethnicity to the colour of its eyes, and the arrangements within which the child will be reared.

It opens up the possibility that the unique value of every child is contingent on whether the child measures up to the specifications and expectations of the adults doing the commissioning. This is a view that is a million miles removed from Fine Gael’s values. We are losing sight of the fact that the value of an infant’s life is infinitely greater than its physical characteristics and transcends the impact of a defective gene.

The bill effectively commodifies children by empowering an adult, or a number of adults, to make a child to order. For example, a single man can buy an egg and have a fertility clinic combine it with his sperm and implant the embryo in a woman willing to be a surrogate mother. In this instance, the child will then be raised neither by its birth mother (the surrogate) nor the genetic mother (who provided the egg).

The bill does not deal with surrogacy. This is, however, likely to be reviewed in light of the Supreme Court’s decision. But unless it bans surrogacy altogether, the type of scenario described above will unfold, with the State’s blessing. The prohibitions on commercial surrogacy simply do not stand up against the power of money.

Mothers and Fathers Matter firmly believes adoption is a good and positive thing, so long as it is voluntary. But using someone else’s egg and/or sperm to commission a child is a different thing entirely. It involves intentionally breaking the natural tie that is fundamental to the healthy emotional development of the child.

The bill will only give a person a right to know their genetic parent when they are 18, but by then, their childhood will have passed and this loss of the wonder years is poverty indeed. If our TDs were to support the bill in its present form, we as a society have no right to judge instances of “forced adoption” from our history and that of other countries.

There are already tens of thousands of people all over the world, conceived by egg and sperm donation, who are seeking out their natural parents and any half-siblings who may have been similarly conceived. One of them, Dr Joanna Rose, is an internationally recognised advocate and will be speaking at Buswells Hotel today at 11am.

The bill does not value marriage. It puts marriage, civil partnerships, and intimate and committed relationships on the same basis. Effectively, this means ‘whatever you’re having yourself’. It is simply nonsense to put these three arrangements on the same level, especially from the child’s perspective.

That is the challenge that will soon confront our legislators. The debate needs time and needs to be child-centred, free of ideology. The party whips may not find it quite so easy to enforce politically expedient legislation on TDs who will reflect on the legacy they wish to be remembered by in this most sensitive area.

Prof Ray Kinsella is chairman of


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