Surrogacy and eggsploitation

Surrogacy has become big business and women in poor countries are being exploited in the process as is evident in recent reports from India surrounding the issue of egg donation, which has also been termed eggsploitation.

Women’s e-news reports that two women have died from causes tied to their role as egg donors in India's booming market for artificial reproduction.

Fertility centers in India (and elsewhere) are clever in their approach and openly invite women in the age group of 25-30 to join them in ‘helping childless couples’. The process is also promoted as an easy way of generating income for women. Neither the morality, nor the possible consequences involved are highlighted to prospective egg donors.

You’ve probably seen them—most of us have. Ads soliciting women to donate their eggs for in vitro fertilization are everywhere: in newspapers, on the Internet, on college campus bulletin boards.

 The procedure is far more problematic than those upbeat ads would ever lead one to believe. The women involved are given hormones to force their bodies to produce far more eggs than they normally would—and that, as you might expect, leads to consequences.

The consequences include strokes, brain damage, internal bleeding, or infertility after the procedure. Some women ended up with cancer, even those who had no family history of the disease. Others nearly died from complications of the surgery done to retrieve the eggs and sadly some also die from hyper-stimulation of the ovaries.

But the problems go beyond that. The women involved in egg donation are being exploited they are being turned into human commodities. They are providing genetic material for their own biological children, whom they may never have a chance to know. If they express any concerns or reservations, they are pressured and even guilt-tripped into continuing.

Young women are often unaware of the risks of egg donation, donors have to take drugs to stimulate egg production, and complications as we have set out may cause future infertility or even death in rare cases.

Women are usually told that egg donation is a safe procedure, when the reality is decidedly unsafe. No young woman should be used in a procedure that jeopardizes her own fertility -- indeed her own life -- in order to line the pockets of those who promote the infertility industry's human egg trade.

The disastrous implications of the practice are set out in a video and can be found on the "Eggsploitation" website

Supreme Court hearing Surrogacy Case on Motherhood

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The Irish Supreme Court is currently hearing the appeal by the Irish State in the surrogacy case in which Mr. Justice Abbott ruled in favour of genetic parents, and rejected the customary principle, mater semper certa est, a principle that means that the mother who gives birth, is the legally  

recognized mother. In coming to this judgement Mr. Justice Henry Abbott recognized the validity of the DNA test for paternity and maternity.

The Irish Times reports

A surrogate who gave birth to twins using genetic material of a couple must, as a matter of law, remain registered as the mother of those children on their birth certificates or there will be “massive” and “radical” consequences, the State has argued at the Supreme Court.

The State’s position is that a woman who gives birth to a child is the mother of that child; motherhood as a matter of fact and common sense involves pregnancy and it cannot in law be based on genetics, senior counsel Michael McDowell said.

It would be a matter of “grave public concern”, with consequences for citizenship, succession and the criminal law, if the Supreme Court does not overturn the High Court decision that the woman who donated the genetic material to the surrogate must be registered as the mother, he argued.

Michael McDowell SC spent much of the day batting rapid-fire questions from the judges, who interrupted him constantly and in the process revealed a consistent set of concerns about the State’s stance.  Photograph: Dara Mac Dónaill/The Irish TimesState’s message on surrogacy: ‘Leave it to the Oireachtas’

‘Complete doubt’

The High Court had no jurisdiction to reverse the meaning of motherhood and was “radically wrong” in finding motherhood was based on genetics. If the genetic parents succeed, it would “put in complete doubt” the position of many women who now think they are mothers after giving birth to children themselves using eggs donated by other women.

Laws being introduced by the Oireachtas will address the position of the couple but it is up to the State, not the courts, to legislate for the issues surrounding assisted reproduction and surrogacy, he said. Any change to the existing law must be effected by a positive law enacted by the Oireachtas with regard to the constitutional rights of all affected.

The High Court wrongly found the State unlawfully discriminated between the genetic parents by permitting the genetic father to be registered on the twins’ birth certificates as their father but refusing to permit the genetic mother be registered as their legal mother, he said.

Guarantee of equality

Maternity and paternity are different and the distinction is justified on grounds including the principle that maternity, unlike paternity, is always certain, counsel argued. Pregnancy had two elements, fertilisation and conception, and the fact the State recognised maternity as based on giving birth did not breach the constitutional guarantee of equality.

While scientific possibilities had changed, the law had not moved with them and any change should be left to the Oireachtas. As of now, the State’s position was that a child “cannot have two mothers at the same time”, counsel submitted.

Agreement

The fact the genetic parents and the surrogate had agreed the genetic parents should be registered as the legal parents of the twins on their birth certificates did not alter the situation, as such an agreement could not be allowed alter the public law status of a mother or determine how family law relationships should be decided, he said.

Mr McDowell was opening the State’s appeal to the Supreme Court against a High Court decision last May that the genetic parents were entitled to be registered as the twins’ parents on their certificates.

The twins were born to a surrogate, a sister of the genetic mother, some years ago.

The appeal addresses a range of complex issues relating to the rights of all involved when children are born as a result via surrogate. The Equality Authority and Irish Human Rights Commission will be making submissions in the appeal.

Legal rights

In exchanges yesterday, Mr Justice Donal O’Donnell told Mr McDowell the State seemed to be making the case that, as of now, the genetic mother has no rights or status in law.

Mr McDowell said it was constitutionally permissible for the genetic mother to be regarded as having no legal rights. If she was registered as the twins’ mother, the register of their births would turn out to be conditional and a mother’s status provisional.

Irish Government appeals surrogacy judgement to Supreme Court

The Irish Government yesterday announced that the judgement of Mr Henry Abbott in the recent surrogacy case is being appealed to the Supreme Court to clarify what they describe as, ‘a number of points of law of exceptional public importance.’

According to the Government statement, which is set out fully below, the judgement raises important questions about how motherhood may be determined under Irish law and has potentially very serious consequences which could, by linking motherhood exclusively to genetic connection, affect a potentially large number of families.

The statement crucially states about the judgement ‘It may also have the effect of tying the hands of the Oireachtas in how it may legislate, in the future, for the complex areas of surrogacy and assisted human reproduction.’

Mr Justice Abbott ruled in favour of the genetic parents in this case, and rejected the customary principle, mater semper certa est, a principle that means that the mother who gives birth, is the legally recognized mother. In coming to this judgement Mr. Justice Henry Abbott recognized the validity of the DNA test for paternity and maternity.

When is DNA set down? It is set down on the completion of fertilization. In other words, Mr Justice Abbott in recognizing DNA as the basis for establishing parenthood has recognized, in effect, that on fertilization the individual human being comes into existence.

This judgement has major implications for the current Government proposals to legislate for the introduction of abortion, leaving it with no option but to appeal to the Supreme Court because of its potential to scupper the proposed legislation

Either way the Government is in a difficult position, on the one hand there will be anger and disappointment at the decision, by families who wish to register children, born using surrogate mothers, as their own, then there is the potential of the judgement to scupper the Government's pro-abortion legislation. On the other hand if the appeal is successful then the use of DNA evidence in court will be called into question with the possible consequences that most of the rape case judgements, murder cases judgements, robbery and sundry other judgements –– going back for as long as the DNA test has been in use –, would have to be declared unsound, and all the criminals involved would have to be released immediately – an appalling vista. 

The Government may now have no option but to defer the enactment of their pro-abortion legislation until after the Supreme Court rules on this issue, which we understand is to be fast tracked.

See related articles in the Irish Independent and the Irish Times

Government Statement

Statement in relation to High Court judgement in the case of MR, DR, OR and CR v An tÁrd Chlaraitheoir [Registrar General], Ireland & the Attorney General

While extremely mindful of the family at the centre of this case, the Government has agreed that the above judgement should be appealed by the Registrar General to the Supreme Court to clarify a number of points of law of exceptional public importance.

The judgement raises important questions about how motherhood may be determined under Irish law and has potentially very serious consequences which could, by linking motherhood exclusively to genetic connection, affect a potentially large number of families. It may also have the effect of tying the hands of the Oireachtas in how it may legislate, in the future, for the complex areas of surrogacy and assisted human reproduction.

The appeal is therefore considered necessary both to bring certainty to this vital area of law and to ensure that the legislature's scope to legislate is absolutely clear. Such clarity is especially important because the Government is committed to legislating to address the wider issues surrounding assisted human reproduction, including surrogacy. Legislation is currently being prepared with a view to being brought to Government later this year.

Department of Social Protection 6th June 2013