New Government guidelines designed to advise people who have used surrogate mothers abroad on their legal rights, “badly overlook some of the major ethical concerns” associated with surrogacy.
The guidelines, published last week by Justice Minister Alan Shatter, do not consider such ethical issues as whether surrogacy is inherently exploitative, or whether motherhood should be ‘split’ between a birth mother and a biological mother (the egg donor).
Surrogacy involves gestating the baby in another woman's womb.
A number of Irish couples have used foreign surrogacy mothers, usually from India, Ukraine and America.
Commenting on the guidelines, Breda O’Brien, patron of the Iona Institute, warned that surrogacy raises, “two very important ethical concerns.”
She said, “The first is that surrogacy is almost inherently exploitative in that it often involves better-off couples renting the wombs of poorer women. It’s no accident that the recent cases in the news have involved Irish couples using Indian women. These women from the developing world are expected to abandon all maternal instinct, which reduces them to little more than breeding machines.”
She continued, “The second big concern is that, in the words of the German Government, it splits motherhood between a genetic and biological mother, and maybe even a social mother. This creates potentially serious identity issues for the child. It is because of concerns like these that countries such as Germany, Austria, Italy and Norway ban the practice of egg donation and therefore, in effect, of surrogacy.”
The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed the legal parents.
However, one of the members of the commission, Christine O'Rourke, recommended instead that surrogacy be prohibited.
There is, “a broad cultural consensus that a woman who has just given birth may be uniquely vulnerable and the removal of her baby against her will is repugnant, unless she poses a threat of immediate harm to the child,” she said.
Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a birth mother (surrogate mother), a genetic mother (egg donor), and even a social mother (someone who is neither the surrogate mother nor the genetic mother but who raises the child).
A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.
O’Brien added, “The Irish Government should carefully consider the laws in countries like Austria and Germany with a view to copying them. These laws properly protect women from exploitation as well as the rights of children.
“What the Government appears to be proposing will do neither. Instead, it should regularise the status of children already born through surrogacy, and prohibit the practice hereafter in the interests of women and children.”
The guidelines state that, under Irish law, the woman who gives birth to a child is the legal mother of the child.
It further states that under the Guardianship of Infants Act, the mother of a child born outside marriage is the child's sole guardian.
They also state that, if the mother is married, her husband is presumed to be the father whether or not he is the sperm donor.
The guidelines state that, under Irish law, family responsibilities cannot be subject to the law of contract and cannot be bought or sold.
“The surrogate mother and the child will have a lifelong relationship with each other,” it says.
If the would-be father is the genetic father of the child, the Circuit Court can acknowledge him as the child's legal parent by granting him declaration of parentage, which will normally require DNA evidence from an independent, reliable source.
Along with the declaration of parentage, the father must apply for guardianship of the child.