Being Ready to Challenge Legal Recognition of Surrogacy – David Mullins

Surrogacy is an area of wide-ranging complexity, acting as it does as a kind of nexus for a whole host of other ethical concerns. This article will touch upon only some of them and even then, only tangentially. Also, it is worth bearing in mind at the outset that despite the seriousness of the ethical judgments which they necessitate, our responses to male or female infertility, or the physiological inability of a partner to carry a child to birth, require a significant degree of pastoral and human sensitivity.

For many couples, coming to understand that they may never have a child except through measures associated with Assisted Human Reproduction (AHR) is a devastating process that has often been compared to grief, comprehending as it does the possible loss of cherished hopes and dreams.

Previously it was the case that when confronted with this reality, many couples resorted to the adoption process, particularly inter-country adoption, as a means to bring a child into their lives. The reality now, however, is that in order to overcome these obstacles, an increasing number of people both nationally and internationally are availing of processes termed gestational surrogacy, and ‘altruistic’ gestational surrogacy. The rise of these practices is inextricably linked to the growth and accessibility of the IVF industry.

Gestational Surrogacy is where a couple utilise in vitro fertilisation to enable the transfer of an embryo created with their own gametes (or gametes from donors), to the uterus of another woman prepared to act as a ‘surrogate mother’ or ‘gestational surrogate’ for their own child.

A good working understanding of ‘altruistic surrogacy’ is captured in the definition provided by the Irish Bishop’s Code of Ethical Standards for Healthcare:

‘Surrogacy involves a woman carrying a baby throughout pregnancy, only to then hand that baby over to the ‘commissioning couple.’ Even when a direct payment for the child is not involved, the child is usually the subject of a financial agreement and is treated as a product to be delivered as part of that agreement.’

Two questions inevitably arise at this point. The first is whether or not gestational surrogacy can be considered a justified course of action by couples seeking to remedy issues relating either to their personal infertility or to an inability to carry a child to birth.

The second is whether or not so-called ‘altruistic’ surrogacy can be considered ethically permissible, particularly in light of the claim most frequently put forward by its supporters, that it is a self-sacrificing act performed for generous motives with no obvious pitfalls.

These questions are going to play an increasingly visible role in the life of our society, now that the Joint Oireachtas Committee on Health has published its Report on the Pre-Legislative Scrutiny of the General Scheme of the Assisted Human Reproduction (AHR) Bill.

This report gives the green light to the introduction and regulation of altruisticor so called ‘non-commercial’ forms of surrogacy, while allowing for the reimbursement of ‘reasonable expenses.’ This is despite the fact that there is mounting international concern around allowing any kind of surrogacy to exist at all.

Rather alarmingly, our own Oireachtas Committee process, and the ‘stakeholder’ involvement which underpinned it, was essentially dismissive of the minority of witnesses who expressed a deeply cautionary perspective on the practice. The fact remains, however, that surrogacy, even ‘altruistic’ surrogacy is deeply and irredeemably problematical. According to the Irish Bishops Code of Ethical Standards, the primary reason for this is that surrogacy in any form is not consistent with the dignity of the person. For even when it is practised with the ‘best of intentions,’ advocates of altruistic surrogacy too often remain blind to its potential to cause immeasurable harm to the child in later life.

This latter point is underlined by the observations provided by the Commission of the Bishops Conferences of the European Community (COMECE). COMECE highlight the unavoidable fact that in all kinds of surrogacy the function of maternity is divided between two or three women, the one who has carried the child and given birth, the one who brings up the child, and often also an oocyte donor:

‘This dissociation between the educational, genetic and physical dimensions (relating to the pregnancy and intrauterine relations) could upset the formation of the child’s personal identity and do him/her a very painful injury, especially if the conditions surrounding their birth are revealed belatedly.’

The Irish Bishops, for their part, highlight surrogacy’s potential to embed and normalise its role in legitimatising the exploitation of impoverished women. This is a perspective echoed in virtually all discussions around commercial surrogacy at the European level, and is one of the principal reasons that India has comprehensively banned the practice. Most recently, a consultative body established by the Swedish government recommended that both commercial and altruistic surrogacy be prohibited.

One of the main reasons why a blanket ban is a good idea and why the Oireachtas Report recommendation is so misguided, is that in practice, altruistic surrogacy does nothing but create a legislative loophole for the ‘sale of children’ through its creative manipulation of what constitutes ‘reasonable expenses.’ This in turn simply permits the continuance of an opening through which the exploitation of financially vulnerable women can continue, but this time with the ‘blessing’ of the state.

The Oireachtas Committee Report claims that ‘consideration of the welfare and best interests of children born through AHR is a key principle underpinning the Scheme.’ The fact of the matter is, however, that nothing like genuine consideration appears to have been given to the potential of surrogacy in any form to dramatically escalate and deepen the division between the physical, psychological and moral elements which constitute the families concerned.

On a more poignant note, the European Bishops also point to advances in research on the development of the infant psyche, which ‘never cease to show us how detrimental it is to separate a very small infant from its mother, thus removing its first points of reference, causing it to live in real chaos. This breaking off can be devastating.’

It is a matter of the most profound and tragic irony, then, that such an outcome, so rightfully decried by the state in terms of the ‘forced adoption’ scandals, is now being celebrated as a public good with respect to surrogacy. These issues only serve to highlight the need for a renewed focus on, and indeed celebration of, adoption as a positive public good that respects the value of human life and the integrity of the family. Needless to say, adoption also avoids very many of the alarming ethical shortcomings associated with the different forms of surrogacy and its use of IVF procedures, especially in terms of ‘surplus’ embryo production.

From a Catholic ethical perspective, surrogacy will present us with an opportunity to re-examine the circumstances in which such ‘nontraditional’ forms of adoption may take place; i.e. embryo adoption. This latter form of adoption occurs where the genetic parents have renounced their moral obligation to provide embryos with the possibility of gestation and development.

It is vitally important, therefore, that we make our concerns heard and felt when the legislation on Assisted Reproduction comes before the Dáil and Seanad for scrutiny. We should aim to do this in a way that is pastorally sensitive but ethically courageous. As Catholics, we have a rich tradition of thought on these matters. Ours is a voice that is needed now more than ever, especially as biotechnological prowess threatens to completely overshadow the fundamentals of human dignity.

David Mullins is a bioethics commentator with a special interest in the application of Christian ethics to emerging technology. david_mullins77@

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