IN THE LAST week or so, surrogacy and donor-conception have assumed a central role in the debate on the marriage referendum. Posters all over the country claim that a vote for same sex marriage is a vote for surrogacy, and warn against “designing” families in which children will be denied a mother and father. These arguments are deeply misleading.
First, the No side’s arguments are based on a flawed account of the case law on the constitutional right to procreate. Second, the No side consistently implies that the ethical issues surrounding surrogacy and donor conception arise only for same sex couples. In fact, these technologies are used by large numbers of heterosexual couples and precisely the same ethical issues arise, whether the prospective parents are gay or straight.
The right to procreate
The Irish courts have never recognised a constitutional right to donor conception or surrogacy. The right to procreate has only ever been fully discussed in one case – Murray v Ireland. That case involved a claim about natural procreation. There is no case in which the right to procreate was found to include the right to have a child using an egg or sperm donor, or a surrogate. It is telling that when asked to name such a case, members of the No Side cannot.
Indeed, it is very difficult to see how the right to procreate could ever extend that far. Having a child using donated eggs, sperm or a surrogate is clearly entirely different to procreating using one’s own genetic material. It means involving a third party in the reproductive project. This obviously has ramifications for the donor or the surrogate, and more importantly, it has major ramifications for the child.
Some commentators on the No Side argue that while there might not yet be a right to surrogacy, the courts might find one in the future. This, too, is completely unrealistic. Just last November, the Supreme Court decided that surrogacy had to be regulated by the Oireachtas, and not by the courts. The Chief Justice, Susan Denham, commented, “Any law on surrogacy affects the status and rights of persons, especially those of the children; it creates complex relationships, and has a deep social content. It is, thus, quintessentially a matter for the Oireachtas.” So, for the No Side’s dire premonitions to come true, the Irish courts would have to entirely abandon this very clear position.
Regulating new reproductive technologies
In the course of the marriage referendum debate, the No Side has very effectively highlighted some of the ethical issues that flow from the development of new reproductive technologies. Many of these points are well made, and highlight very real questions that are asked about assisted reproduction.
For example: is it wrong to have children that will not be raised by their biological parents? Does a child have a right to know his or her biological parents, and if so, is it enough to vindicate that right when the child turns 18, and not earlier? Does a child have a right to know a surrogate mother, even if the child has no biological relationship to her?
There is no denying that these are enormously complex issues that require us to think deeply about the ethics of responsible parenting. What has to be recognised, however, is that these are not uniquely same sex issues. When an opposite sex couple chooses to use a donor or a surrogate, exactly the same ethical dilemmas arise. The donor-conceived child of a straight couple will not be raised by his or her biological parents. All surrogate-born children are separated from their birth mothers. It is disingenuous to pretend that ethical issues only arise where same sex couples are involved.
These challenges can only be tackled by responsible, cautious, legislation
The best response to these complexities is to enact careful and comprehensive regulation that protects the best interests of the child. That process began with the Children and Family Relationships Act 2015, which regulates family relationships arising from donor conception. This Act took the courageous step of prohibiting anonymous egg and sperm donation in Ireland. Ireland now has one of the world’s strictest regimes for protecting the child’s right to know their biological parents. All donor-conceived children and donors are entered on a National Donor Register. When a child over 18 seeks a copy of his or her birth cert, he will be able to find out that he or she was donor-conceived.
The next step for the legislature should be the long-promised surrogacy bill. The ethical challenges posed by new reproductive technologies can only be tackled by responsible, cautious, legislation. Voting no in the marriage referendum will not serve to address any of those challenges, or to protect the best interests of future children.
Dr Andrea Mulligan is a practising barrister and adjunct assistant professor lecturing in medical law and bioethics at Trinity College Dublin. She advises Lawyers for Yes on issues relating to surrogacy and donor conception. www.lawyers4yes.ie
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