OF ALL THE issues highlighted by the No side in the marriage referendum debate, the issue of surrogacy has proved to be the most controversial. Joan Burton described the No side surrogacy posters as “sad and demeaning”. Others claim surrogacy is a red herring inserted into the debate to create confusion and moral panic. In truth, it’s no surprise that these bioethical issues have arisen, and I’d be surprised if they disappear from the airwaves and opinion columns once the referendum is over, irrespective of the result.
Same-sex marriage and the right to procreate
In Murray v Ireland, the Supreme Court recognised that all married people have a constitutional right to procreate, that right ‘being essential to the human condition and personal dignity.’ If the referendum is passed, same-sex married couples will have a constitutionally protected right to procreate. This would strengthen significantly their claims for access to the assisted reproduction methods they need to realise this right, ie donor-conception and surrogacy. Any attempt to prohibit or restrict those methods would be vulnerable to constitutional challenge on the basis that it violates the right to procreate of same-sex married couples and is, therefore, discriminatory.
The Government is preparing a draft bill for the whole area of assisted reproduction including surrogacy that would make Ireland much more permissive than many of its European neighbours, several of whom expressly ban surrogacy.
Those strict surrogacy bans haven’t prevented legal battles in the wake of same-sex marriage. In Spain, there has been a protracted legal dispute 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 family law bill was planned to accompany same-sex marriage. It would have extended the right to assisted reproduction to lesbian couples and decriminalised surrogacy contracts. Huge protests rallies across France forced the French Government to abandon those plans, for now.
Irish surrogacy legislation
The Irish Government has rejected banning surrogacy. The draft heads of the assisted reproduction and surrogacy bill reveal that the Irish Government plans to legalise, formalise and legitimise surrogacy. The legislation will allow a mechanism for a surrogate birth mother to relinquish her status and transfer parentage to a commissioning couple in a surrogacy contract. The plan is to ban commercial surrogacy but allow reimbursement of reasonable costs associated with pregnancy. No figure has been defined, which may make it difficult to ensure payments relate totally to costs incurred.
Minister Varadkar says 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.”
International surrogacy clinics and agencies are enthusiastic about the referendum and the prospect of surrogacy-friendly laws. Oregon Reproductive Medicine (ORM) has already opened an office in Dublin. It’s one of the world’s leading clinics for technology-enabled same-sex parenting, particularly same-sex fatherhood through surrogacy. The commissioning couple goes to Oregon twice – once to give sperm and then to pick up their baby. ORM holds regular information seminars and resource fairs here aimed at same-sex couples. An event in November held in association with Gay Weddings Ireland was entitled ‘The Future of Same-Sex Parenting in Ireland’. ORM was also a sponsor of and exhibitor at a symposium in Brussels earlier this month entitled ‘Men Having Babies: Parenting Options For European Gay Men’.
Dr Brandon Bankowski of ORM says: “We are proud of our involvement in this rainbow family explosion. We find ourselves in the midst of a gigantic social change, if not a global movement, and we are humbled to do our part in helping the LGBTQ community start or grow their families.”
In a GCN magazine article entitled “Baby Daddies”, Brian Finnegan wrote:
“In Ireland, Civil Partnership, and optimism over the possible introduction of same-sex marriage in 2015, has engendered a new sense of possibility for gay couples in terms of creating families of their own.” He welcomes the fact that “Oregon Reproductive Medicine has streamlined the process so that a couple can be home in Ireland with their baby, or babies, within a year and a half of first making contact.“
Women and children are most affected by these technologies
The current absence of regulation for assisted reproduction and the possibility of permissive regulation, combined with a constitutional right to procreate for same-sex married couples, could make Ireland vulnerable to becoming a destination country for surrogacy practitioners and consumers.
The potential exploitation of women and the commodification of children are huge ethical issues here. Because surrogacy arrangements typically 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 combination of globalised assisted reproduction and same-sex marriage places legal institutions at a difficult intersection of conflicting rights. Donor-conception, surrogacy and same-sex marriage increase pressure for parenthood to be seen as an intentional, contractual and transactional relationship rather than a biological one. Both surrogacy and donor-conception require more, not less, ethical discussion before the Government’s plans in this area become formalised in law.
Louise Doris is a final year PhD researcher on the laws of assisted reproduction and surrogacy across EU countries.
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