Surrogacy: the babies born into legal limbo
The Irish Times – Tuesday, November 22, 2011
JASON AND ROSS, a gay couple from Dublin in their 30s, are busy packing their bags with nappies, baby wipes, and toddlers’ clothes. “I suppose this isn’t your everyday pregnancy,” says Ross, with more than a hint of understatement.
They’re on their way to catch a plane to India. In a few hours, they’ll see their new-born twins for the first time – a baby boy, Nicholas, and baby girl, Alexis. Their birth is part of a growing trend of using surrogate mothers to carry children for couples who can’t have a child due to fertility problems or, as in Jason and Ross’s case, the lack of a partner of the opposite sex.
Nicholas and Alexis’s birth was was made possible through the involvement of four different parties: the egg of a Canadian donor was fertilised with sperm of Jason and Ross; the resulting embryo was then transferred to an Indian surrogate mother. In addition, two different organisations in the US and India facilitated the egg donation and surrogacy process.
In building their family, Jason and Ross are at the forefront of a reproductive revolution which is re-shaping our definition of the human family.
In Ireland, there is no law governing surrogacy. The Commission on Assisted Human Reproduction concluded in 2005 that surrogacy should be permitted, subject to regulation, but nothing has been done about this.
As a result, would-be parents in search of surrogate mothers are going abroad to countries such as the US, India or the Ukraine, where there are well-defined legal frameworks. There are no official figures for surrogate children in Ireland, although passport authorities here are aware of at least 35 children over the past 18 months.
Surrogacy is proving a vital source of hope for childless, would-be parents. But the emerging commercial market for surrogate babies is also raising unsettling ethical questions. In stark contrast with adoption – which requires a thorough and often painfully slow vetting process – anyone can enter into a surrogacy arrangement abroad, whether they are suitable parents or not.
And then there is the legal uncertainty associated with the process.
Surrogacy remains mired in secrecy and beset with complex legal hurdles. Laws on parenthood were never designed to cater for these cases. As a result, where parents have difficulties meeting the complex legal requirements for parenthood and guardianship, their children can be left in a legal limbo, without a passport or citizenship of any kind. In many ways, they are simply invisible in the eyes of the law.
WANTING TO BE A DAD
THE IDEA OF parenthood first came to Jason several years ago. He had felt an acute sense of loss about not being able to have children of his own. Then, several years ago, he read a magazine article about a German man who had gone to the US and had triplets via a surrogate mother. It lodged in his head – the idea wouldn’t go away. “It was like a box had been opened and there was no closing it,” Jason says.
After living with Ross for three years, he raised it with him for the first time – but the answer was a firm “no”.
“I could only think of the negatives,” says Ross. “Just imagine, two men in a relationship, bringing up kids. Think of the effects it might have on them. I was nervous about it and pulled back. I wasn’t ready.”
But within a couple of years, they were back exploring it again; this time, they felt more certain they were ready. And this time, they decided to involve their families and ask their opinions.
There were different reactions. Some were supportive, some were taken aback. Others just needed time to think it through or get their heads around it.
“We’re a traditional, inner-city, working class family from the Liberties,” says Ross. “When I broke the news first, the brothers were all: ‘Let’s have a drink and celebrate’. My sisters were more sceptical, but then came around to the idea. My mother was a bit saddened and worried that we’d be the talk of the town – but now she’s delighted.”
The prospect of building a family was exciting – and daunting. How many children would they have? Who would be the biological father? Who would be the biological mother? What would their children look like? They wanted more than one child – they didn’t want an only child – and began searching the internet for an egg donor.
“I’m from a big family and wanted our children to have brothers or sisters who’d be there to support each other. That’s the way it was when I was growing up,” says Jason.
They settled on an US agency, which provided a list of dozens and dozens of potential donors.
Jason and Ross weren’t so much interested in the physical characteristics or trying to “design” a baby. They had two key priorities: a woman with a healthy family history, and a donor who was willing to be contacted by her biological children in the future.
“Then a Canadian woman just jumped out at us,” says Jason, of the donor. “We were only told her first name, and her medical history. But, she just seemed right.”
Finding a surrogate mother was another challenging step. The cost of surrogacy in the US was prohibitive – all in, it was likely to cost them around €100,000. So, they looked to India. After searching around, they opted for a centre in Delhi which was recommended by other Irish parents who had used it. It would also cost far less – somewhere in the region of euro20,000. The surrogate mother would receive around €4,000 and would carry eggs by the Canadian mother, fertilised with Jason and Ross’s sperm.
MOTHERS AS A COMMODITY
SURROGACY, HOWEVER, is increasingly under fire on a number of fronts. Many religious groups are opposed to the process. But a wider source of unease is the commercialisation of surrogacy. While it’s illegal in many countries, such as the UK, to pay for surrogacy, the industry in India is estimated to be worth up to €2 billion.
Sometimes, surrogate mothers – often poor – find themselves as pawns in a lucrative arrangement between agents and relatively wealthy foreign couples. Contact between the contracting couples and the surrogate mother is generally discouraged and sometimes banned, so they have no real way of monitoring the process.
It’s something Jason and Ross freely admit to being concerned about. They have been told the money will allow the surrogate’s own child to go to college and maybe buy a new house. They are as sure as they feel they can be that the process is above board.
In the meantime, preparing for the arrival of their children, even in these unusual circumstances, has been similar to any other expectant parents.
The past few months have been a blur of baby fairs, cribs, cots, keeping a eye out for cut-price nappies and doing in-depth research into the best kind of buggy for twins.
In the run-up to the birth, Jason queued up with dozens of mothers at the Next summer sale from 4am onwards, to make sure to get a good place in the queue. At the RDS baby fair in April, they roamed the aisles and came back with bulging shopping bags – and even went back the next day when they realised all the freebies they could get.
They joke about those times – but doubt and anxiety have been ever-present.
Ross still wonders if he is doing the right thing and finds himself trying to comprehend this life-changing move. Jason, the more practical of the two, is often worried sick that something might go wrong.
It also takes a lot of explaining; a new language and family structure which are alien terrain for most people.
“We’ve to explain who the donor is; who the surrogate is; how we’ve done it all; that it’s our sperm and they’ll be genetically ours. And, then, at the end of it all, people say: ‘so the kids are going to be Indian?’ No, they won’t! We explain that the kids have our genetics and the Canadian mother’s.
“‘So, who’s the Canadian again?’ they say.
“‘It’s the donor,’ we say.
“‘And who’s having the baby then?’ ‘The Indian . . .’ See what I mean?”
As of now, they’re entering a world full of uncertainty: there’s little in the way of State support for the intended parents of children born by surrogacy. Jason and Ross can’t get parental leave, so they must take annual leave. State agencies and Government departments haven’t been able to give them simple answers to simple questions.
And then, more immediately, there are the legal obstacles of parenthood, citizenship and passports. When Jason and Ross started looking for answers, they met a series of brick-walls.
“It’s so annoying and frustrating that there are no clear laws to allow for this – our laws are lagging at least 15 or 20 years behind where they should be. What were our politicians and legislators doing when other countries were catching up with surrogacy? Welcome to dear old Ireland,” says Jason.
Surrogacy is a very clear-cut business in some countries, such as in parts of the US. While numerous Irish couples have been successful in using surrogacy in India, some have encountered difficulties getting their babies out of the country or obtaining an Irish passport once home. As of now, they are hoping and praying the process works out okay without any legal hitches.
In the meantime, the two men are excited and daunted at what lies ahead. They know their children will be curiosities, and that people will always ask where they came from. They plan to be up-front with their twins, because they feel it’s in their best interests to be.
“We won’t keep any secrets from them,” Jason says.
As you speak with them, you can’t help but be struck by their enthusiasm and excitement, but also their naivety. They are motivated by the best of intentions and want to give a loving home to two children. But they are also entering a world of unanswered questions and have little idea about how it will all work out.
Whether they fully realise it or not, they are part of a reproductive revolution which is forming the human family in ways that are still unpredictable. Surrogacy – whether through lucrative deals abroad, organised through internet chat-rooms or regulated closer to home – is here to stay.
“It’s every exciting: you wake up in the morning and think, ‘geez, I’m going to be a Dad soon’,” says Ross. “And there’s all the preparing, the clothes, nappies, pram, the cot, doing up the room, everything.
But we have to cope with the stress of the legal route and the expense of it all – just because our Government hasn’t updating the law . . . that’s the hardest part.”
The names of Jason and Ross, and their children, have been changed at their request
Surrogacy in numbers
2 billion The estimated worth in euro of the surrogacy industry in India next year
35 The number of surrogate children born for Irish parents that authorities know about
20,000 The typical overall cost of surrogacy in India, in euro
85,000 The typical overall cost of surrogacy in the US, in euro
4,000 The typical payment to a Indian surrogate for carrying a baby, in euro
25,000 The typical payment to a US surrogate for carrying a baby, in euro
The surrogate child: no nationality, no passport, no legal parent
INSIDE THE bubble of their spacious family home in Glasthule, everything seems well with the world.
One-year-old Robyn Maye-Coffey is cooing and laughing in the next room. Her parents are warmly recalling her christening and first birthday party. The photos around the kitchen, meanwhile, capture her transformation from a tiny 3lb tot to a wispy-haired, bright-eyed girl.
But outside the bubble of their home, it’s a different story. Officially, Robyn has no legally recognised parent or guardian. She has no nationality or passport. She cannot leave the country or enter another one. And she is caught in this bizarre twilight world because she was born to Irish parents by a surrogate mother in India.
“As long as we don’t leave this house, it doesn’t really affect us. You can almost forget about everything,” says Mike Coffey. “But that can’t go on forever. She needs an operation on one of her eyes. But we can’t sign the legal documents as parents. Under Irish law, she’s nobody.
“We’ve been told we need to go to the High Court to sort this out. That is hugely expensive. And we’re told legislation will be put in place to regulate this, but that could take another 20 years.
When Robyn was born in September 2010, it felt like a miracle. Coffey and his partner, Catherine Maye, had been trying to have a child for years. But after numerous miscarriages and failed IVF attempts both here and in Spain, Ukraine and South Africa, they had run out out of options.
By now they were both in their mid-40s. Adoption, they felt, wasn’t a viable option. But when a doctor suggested surrogacy, they decided to give it a try.
They organised a surrogate mother through an agency in Delhi, India, which is used by couples around the world. At their first attempt, Robyn was born on September 25th 2010.
“After everything we had been through, it was such a joy,” says Catherine Maye. “Her birth was a magnificent occasion. She brought such joy to us and all our family.”
They were soon brought back to earth by the legal hurdles they had to climb to bring their child back into Ireland. After a series of frantic phone-calls, the Irish embassy in India provided an emergency travel document which allowed them entry into the State.
Following legal opinion, they were advised to obtain parentage and guardianship in the Circuit Court to clear the way for her citizenship.
However, the parents say the judge refused to deal with the application (although the Government maintains the application was refused).
When they tried to get the Passport Office to process their daughter’s application, the officials said their hands were tied by the courts. And when they went to the Minister for Foreign Affairs, he said he couldn’t intervene because the issue had to be dealt with by the judicial system.
“I just don’t understand what the problem is,” says Mike. “We have a DNA test confirming that I’m the father. They put people away for murder on the basis of DNA tests. Yet, they won’t recognise that I’m the parent in this case.
“We’ve heard of cases where people have got passports without mentioning the fact that they are surrogates,” says Mike. “We could have told lies and everything would have been fine. But because it’s surrogacy, everyone has a problem with it. We’ve tried to do everything by the book, yet this is the situation we find ourselves in.”
They are annoyed at what they see as faceless bureaucrats denying them rights. In a recent comment to the Dáil, Minister Gilmore said he had considerable sympathy for the parents and had made extensive enquiries about it within his department. While he had no legal basis to ignore the Circuit Court’s decision, he said the State was willing to “provide every co-operation in expediting an appeal to the High Court” and would not seek any legal costs.
For Coffey, this still isn’t good enough. He says they don’t want to be a test case and fears the case could be referred to the Supreme Court on a point of law. In any case, he says, it would simply cost too much. This, he says, is why he and his partner have decided to go public.
“We never wanted to do this,” he says. “We went as far as we could.”
There are many out there who are scared to go above the parapet, but what’s to lose? Both Coffey and Maye have work commitments in the construction industry in the UK which means they travel over there regularly. The option of re-locating entirely and seeking British citizenship is now an option he is exploring.
“What’s to lose?” he says, with a flash of anger and frustration.
“We’re going to have to give up our nationalities. Their actions mean that I don’t have a choice. If it’s between my nationality and my daughter, I’ll choose my daughter. And it disgusts me that I have to do that.”