Should Surrogacy be Permitted in Ireland?

In February the Minister for Health, Leo Varadkar, announced that the Cabinet are preparing new laws to regulate assisted human reproduction and surrogacy. At present there exists a legal vacuum, but the proposed Bill for Assisted Human Reproduction and Stem Cell Research will work towards regulating surrogacy and associated practices for the first time in Ireland. It is understood that legislation will only permit altruistic surrogacy, but not commercial surrogacy. Other countries like Denmark and Britain already permit altruistic surrogacy, but ban commercial surrogacy, while France, Germany, Austria, Spain, Portugal and Italy ban the practice completely.

Surrogacy is an arrangement where a woman becomes pregnant with the intention of transferring over the baby to someone else sometime after giving birth. In cases of altruistic surrogacy, it is usually a relative or close friend who volunteers to be the surrogate mother. Generally, infertile couples are the group most likely to contract a surrogate mother; though it may also include same-sex couples, single people, and in some cases women who have some medical condition that would make pregnancy dangerous. It would also allow carriers of serious genetic diseases to avoid pregnancy.

Some have expressed concern to the Government’s proposed plan. They argue that the practice creates too many legal and ethical problems, and, for this reason, it should be prohibited completely. To be sure, advances in reproductive technology over the past number of decades have presented us with some novel solutions: infertility treatments, such as IVF, have radically increased the prospect of reproduction without sex. Nevertheless, procedures like surrogacy have given rise to some troubling ethical issues.

Some oppose surrogacy because they think of it as unnatural, that is, it should not be practiced (particularly when it requires IVF) because it is tampers with nature and, in particular, human biology. This argument obviously fails, however, when we take into account that throughout history several medical treatments—such as, effective cancer therapies, antibiotics, artificial respirators, feeding tubes, vaccinations, local anaesthetics, etc—have tampered with human biology or nature in some way. For this argument to be anyway plausible, one would have to concede that all these medical advances are also wrong, or else explain why surrogacy (or reproductive technologies, in general) are unnatural in a way that the others are not. One the other hand, it could equally be argued that it is natural for humans to manipulate their environment and enhance their own capabilities to suit their needs and preferences. 

Another concern often expressed is that terrible legal conflicts and moral pitfalls are likely to happen with surrogacy. For instance, sometimes disputes over who should be considered the legal mother can occur: the surrogate mother or the commissioning mother (who, in many cases, will be genetically related to the child). Furthermore, after a baby is born the surrogate mother may change her mind and wish to keep the infant, thus leaving the commissioning parents empty handed. Conversely, there could be cases where the commissioning parents decide they don’t want the child anymore—e.g. perhaps owing to the fact that the foetus or child has some kind of disability. There could also be instances where one party requests an abortion, to the objection of the other, at some point during pregnancy. (And seeing that women are legally entitled to travel from Ireland to the UK or elsewhere for an abortion, it would be difficult to deny this right to surrogate mothers.) Indeed, there are several other complications that can arise with surrogacy.

Some would consider that these potential disputes provide sufficient grounds to prohibit the practice completely. Certainly conflicts can arise over who is the real mother; and, indeed, it may well be a dispute that is not possible to ever fully resolve. No scientific information on its own can give us a clear answer, since the matter is also normative. The current law in Ireland already proclaims that the person who gives birth is the legal mother of the resulting child; this same condition will also apply with respect to surrogacy. What will change if the new law is passed, though, will be a process to allow for the transfer of parentage if both parties involved decide that that should happen. In all cases of surrogacy, then, the surrogate mother will have the legal right to custody of the child she gave birth to. Although this condition may sound controversial and uncompromising, it does at least bring some legal clarity to surrogacy arrangements in Ireland.

Regarding the other concerns mentioned, arguably they can also be curtailed, or even avoided, by introducing legislation to allow the state to regulate surrogacy close to the way it regulates adoption. Some might respond by saying that even if disputes are relatively rare, that, in itself, is an adequate enough reason to fully ban the practice. At the same time, we should bear in mind that conventional parenting disputes often occur as well, and that usually doesn’t give us sufficient grounds to prohibit childrearing or marriage. Nearly everything we do—which includes entering into marriage or deciding to have children—carries some potential for harm, but it doesn’t usually occur to us to do away with the whole undertaking entirely, as opposed to trying to minimise or eliminate the risks.

For this argument to have any weight, it would have to show that surrogacy disputes would be significantly more common and intractable than other disputes that concern family law. I’m not sure if there is much evidence to support this view; in fact, the reproduction rights lawyer Lori Andrews argues that surrogate mothers usually don’t report experiencing psychological pain and distress in the same way that several birth mothers do when they hand over their child for adoption. She also points out that less than 1 percent of surrogates change their minds about handing over the child to the commissioning parents, whereas in cases of adoption, around 75 percent of birth mothers decide to keep their child.

Probably the most common objection to surrogacy is that such an arrangement could be harmful to any resulting child. For instance, it could be a traumatic experience for a child to know that he was conceived through a surrogate mother. In other words, the knowledge that one’s existence is the result of some kind of Frankenstein-esque lab experiment could bring about an earth-shattering existential crisis. In addition, the normal relationship between the parents and child is distorted by surrogacy, and it may block-off the likelihood of a close family relationship. However, these particular concerns are purely speculative and I’m not sure if there is much, if any, empirical evidence to support them. There is some evidence to show that children born through surrogacy appear to be generally well adjusted. Though it is also worth noting that at aged 7 they showed elevated levels of adjustment difficulties, but it seems that it is not indicative of any psychological disorder.  

Even supposing it could be show that children would be psychologically damaged as a result of surrogacy, would this be a sufficient reason to ban the practice? Without surrogacy, of course, they would not have existed at all. Unless we say such children would have lives so devoid of meaning and well-being, that it would be better if they would never have being born, it is difficult to claim such children have been harmed by having been brought into existence. We usually don’t prohibit parents from having children, even if it is known that a resulting child may suffer from some undesirable trait in the future—like depression or anxiety, for example. In terms of traditional reproduction, we normally don’t think it’s wrong to give birth to children who might be, in some way or another, at a disadvantage; once we see that they can go on to live meaningful lives, we generally view their existence as something positive.   

One other objection that’s often invoked in debates about surrogacy is that it’s wrong for someone to go to so much effort, and expense, in order to create a new baby when they could adopt an already-existing child that needs looking after. This argument certainly has some intuitive appeal. However, there are at least a couple of objections. Firstly, in spite of the fact that many people would like to adopt, it is not always an option; in western countries it is often the case that there are more people wanting to adopt than there are babies in need of adoption. One response to this could be that there are many more children in need of adoption in developing countries and, rather than resorting to surrogacy, couples could provide care to a child that desperately needs it. That’s certainly a possibility, but there’s usually a considerable amount of paperwork and long distance travelling involved; and what’s more, the whole course of action can take a number of years to fully complete. These combined factors are likely to make overseas adoption an unappealing option for some. 


Secondly, many people have a desire and preference, for obvious evolutionary reasons, to rear a child that is genetically their own. It certainly seems unfair that someone would be denied the chance to access surrogacy and then to be reluctantly nudged into adopting an orphan from the developing world. Besides, we generally don’t consider it a moral failing when fertile couples prefer to have their own child, why then should we see it as a moral failing when infertile couples desire the same? The best candidates for adoption are likely to be those who freely want to adopt, not those who agree to reluctantly go along with it because they were denied other options. Adopting a child is a massive sacrifice and it is probably better, all things considered, that those seeking adoption are fully committed to it. Having supportive adoption incentives would unquestionably be a good thing, but it is doubtful that denying access to surrogacy would be a good way to bring it about.

As we have seen, surrogacy can present many legal and moral complications, but many of them can be largely averted with tight legislation. Surrogacy in Ireland, at present, is not governed by law, and the Government’s intention to bring forward legislation is surely something to welcome.