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Saturday, November 8, 2014

France and Germany ban surrogacy - so should we

The ruling by the Supreme Court yesterday that the genetic mother of a baby born to a surrogate cannot be considered the baby's legal mother for the purposes of the birth certificate demonstrates why a number of European countries ban surrogacy altogether.

To cut a long story short, surrogacy creates an automatic and unavoidable ambiguity about who the mother of a child really is. Is the mother the woman who gave birth to the baby (the surrogate), or is it the genetic mother who provided the egg?

The answer is that both women have a valid claim to be the child's mother because motherhood has been split between two women.

The High Court had originally ruled that the genetic mother was the legal mother because the baby is more hers, biologically speaking, than it is the child of the birth mother.

But a birth certificate records the name of the birth mother and the genetic mother was not the birth mother. So how could her name appear on the birth certificate? It was this sort of reasoning that led the Supreme Court to overturn the High Court ruling.

The ball is now in the Government's court. What should it do? In justice, it should follow the example of countries like Germany and France and prohibit surrogacy completely. This is the one and only way to avoid the kind of automatic ambiguity surrogacy creates about who the mother of a child really is.

Children deserve no less. The identity of a child's mother should be certain and it can never be certain when surrogacy exists, no matter what kind of law is passed.

This is not the only insurmountable moral dilemma created by surrogacy. It also unavoidably makes the child the object of a contract. This is the case whether the surrogacy contract is commercial or non-commercial, written or verbal, because the surrogate agrees in every case to bear a baby for the commissioning adults and then to hand the baby over to them at the end of the nine months.

It ought to go without saying that children should never be the object of a contract.

During the summer we witnessed the Baby Gammy scandal. Baby Gammy was born to a Thai surrogate mother. She had given birth to twins. The commissioning adults were an Australian couple. One of the twins was healthy. Gammy has Down Syndrome. Gammy was left with the Thai birth mother.

This caused an international furore and money was raised to help Gammy and his birth mother. Some commentators reckoned the problem here was that the surrogacy contract was commercial, that is, Gammy's mother was paid to have the baby.

But even if it wasn't commercial, the same scenario could easily have arisen because the Australian couple would have been free to walk away from Gammy no matter what. Why is this? It's because surrogacy contracts of any kind are almost never enforceable.

Is the answer therefore to make them enforceable, as a handful of US states do? No, because if they are made enforceable then we are faced with the prospect of a baby being forcibly removed from the arms of a surrogate mother who has changed her mind about handing over the baby.

So whether we make surrogacy contracts enforceable or unenforceable, we encounter deep problems.

Yet another problem with surrogacy is that the potential for exploiting women is very great. It is almost invariably low-income women, often from countries like India, who rent their wombs to higher-income couples from the West.

France's Socialist prime minister recently reiterated his country's opposition to surrogacy. He said that having examined the arguments, he had changed his mind on surrogacy and now saw the terrible problems it creates.

He wants there to be an international treaty banning countries that allow surrogacy from serving couples who come from countries where surrogacy is prohibited.

Leo Varadkar has promised a law on surrogacy and Assisted Human Reproduction (AHR) generally. Rather than listen to representatives of the AHR industry and their lawyers, he should pay attention to what countries like France, Germany and Austria have done and why. He should then emulate them by prohibiting surrogacy.

That is the only way to stop the exploitation of women, prevent children being made the objects of a contract and ensure that children are certain of who is their mother.


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