My blog is meant to inform but its primary purpose is not to be informative. It is about the law but it is not solely about the law but also about those places the law does not go. The law is the platform from which I dive. My blog is about my opinions but is not primarily about my opinions since I often temper these to the subject matter on hand, not to mention the imagined audience. Quite often when I open a subject which is related to the law for discussion, I find myself in a place I never meant to be, or to go, as if the subject takes on a life of its own. I write articles based on what I do for a living, and I am a family lawyer, but of course that is not all I am. I find that when I engage with a subject, and use writing to express my thoughts, that quite often the journey is more interesting than the end and that what I thought I was writing about is not what I wrote about at all. This seems to me to be a metaphor for life. I write, therefore, to throw some light into the dark, to increase my understanding and by extension hopefully, other people’s understanding of what often seems incomprehensible, to enliven the dull so my spirit does not sag and to throw some humour at what is often deeply sad so that I can, or maybe, dare I say hopefully, “we”, can gain perspective. I doubt I succeed but the effort is honest.
Thursday, November 17, 2011
To many of us, surrogacy can seem like something from Brave New World. However, surrogacy is not new, indeed, it is mentioned in the Bible. Sarah, Abraham’s wife had her servant Hagar carry and deliver her first baby, Esau. What makes surrogacy in modern times seem like something straight out of a science fiction novel is the extraordinary range of reproductive technologies that we have evolved in a relatively very short period of time, since the late 1970s in fact. The commercialisation of surrogacy gives rise to profound legal and ethical implications for all of us. We must now ask the most basic questions such as – Just because science can do it, should it? Another – even if money can buy it, should it? But these only seem like new questions. In fact they are or versions of them are the basic questions arising in practically all moral issues in our modern world. As in all moral questions your answers will determine where you stand.
Many opponents of reproductive technologies argue from the basis of the natural order of things. If you don’t have children, then maybe you were not meant to have them and/or it is against nature to tamper with such Godlike matters as birth and death. However, we tamper with birth and death in all sorts of ways and have done for a very long time. Many of us practice birth control or family planning for example. We also manage pain and suffering due to advances in medical science. We are constantly researching and sometimes successfully discover cures for various previously fatal illnesses and diseases. There will be those who oppose even such practices and such opponents have the merit of consistency. Few of us, however, now feel that we should experience profound physical suffering if it can be prevented by modern medicine. However, the hospices which seem such a byword for compassion and humanity have not always been widely accepted and were controversial in their time. We argue the standpoint of “natural” from the yardstick of our culture, time, location, experience, class background, education, religion, politics and morality. Ancient practices, and not so ancient but different practices, can seem barbaric to us. Plato and Aristotle, founding fathers of much of our western thought processes, educational standards and cultural standpoints ,both saw infanticide from the perspective of their culture as necessary and permitted. Indeed, infanticide was widely practised in ancient societies including Europe as a means of family planning, poverty control or primitive eugenics. We would not consider making the argument of “natural” now in this context but from the perspective of that time, it would have been a viewpoint. “Natural” can be used to justify apartheid as much as it can be used to argue against reproductive technology.
Legal experience has shown that when science gallops ahead and politics and society drags its heels, necessary debates are overtaken by developments and events. This frequently leads to poor law passed in haste in response to emergencies rather than carefully balanced and considered. Reproductive Technology has been forging ahead since the late 1970s and it is time for us to grasp the nettle. We have a tendency to react as if ignoring something will make it go away. We are an island nation but we are no longer isolated. We are part of the international community and developments in one part of that community will affect us here and there is no way of avoiding this. If surrogacy is allowed in other parts of the world and is accessible to Irish people then Irish people will avail of it with the implications that has for the rest of us. In Ireland we took the initiative some time ago and commissioned a report on this matter. This was filed in 2005 entitled “Report of The Commission on Assisted Human Reproduction”. Then, as with so many things, we left it and rested! This report is superb. It is comprehensive, explains much that needs explanation about various reproductive technologies, terms in common use, issues and developments. It names and deals with the legal and ethical issues as they arise and makes recommendations for legislation based on findings. In short it makes a very complex area readily understandable to those without a scientific background and that is quite an achievement. From a global standpoint, if the recommendations of the Commission were to be adopted into Irish legislation, Ireland would stand at the cutting edge. Perhaps not everyone wants this for us but to have no legislation at all, which is our current position, is the worst of all worlds.
Now it is scientifically possible for a baby to be created in a petri dish from the sperm of a man and the egg of a woman and the resulting embryo can be transferred into a second woman to gestate. Reproductive scientists are able to accurately tell if a created embryo might carry a specific disease. The use of embryos, the by-product of such technology, for research is in itself highly controversial. For some time now it has been possible to tell the gender of a child in the womb however, now it is possible to tell the gender prior to implantation in the womb. Soon we may have the technology to determine hair, eye colour etc. All these developments give rise to issues and indeed when combined with politics and culture, can have very unintended results. Such power is breathtaking. It can offer wonderful promise and hope too many people, infertile couples as well as the treatment of many diseases. However, such power comes at a price and not just monetary, the price of responsibility. How do we control and regulate these developments?
Prior to the development of reproductive technology in its current form, it occurred to many people that controlling who can breed was desirable. People believed that they could eradicate poverty, for example by such methods. Their motives were not always bad, many were well motivated. However, these ideas in the hands of, for example, Hitler, led to the mass extermination of “undesirables” and to breeding programs to create an Aryan race. Many fear that the same potential exists with this technology except that now we have a very real possibility of being actually successful. In present day China and India our ability to tell gender is being used to abort female children. Historically, and even in modern day China, it would be an understatement to say that females were and are undervalued. It was commonplace to commit infanticide on unwanted female children. China then introduced the one child policy to curb its population. Put those three things together and it was hardly surprising that the new technology enabling gender recognition would be used to abort female children since if you could only have one child, you would certainly want a boy! Now we have a situation where on a very conservative estimate China will have 30 million more men than women by 2020. There are enormous social implications to this which deserve another article. India is also using reproductive technology to abort female children. Like China such children are not valued. In India, the average birth rate is 927 females to every 1000 males. In some places the number of females is as low as 800. Average out that difference over say 50 years and you have a problem similar to China. Recognition of the problem in China led to relaxation of the one child policy but not its abolition. In addition, the government is now offering incentives to couples to raise girls.
Many people when confronted with the problem of infertility will argue that such couples should adopt. Adoption is also controversial and particularly international adoption. There are those who consider it a form of child exploitation. Regulating adoption, particularly International Adoption, has proved and continues to prove very difficult. Without considering any of these difficulties which are the material of articles in and of themselves, we need only mention that to adopt, a couple has to go through enormous hoops and it is a very long process. Adoption regularly takes 4/5 years to complete. It seems to me too, that adoption should be something you want to do as and for itself, and not something you simply do because you have no other option. Indeed, in my world this would be one of the tests of suitability to adopt but that is another discussion. For single parents, cohabiting couples, homosexual couples (people who are controversial particularly in the area of parenting in and of themselves) can find adoption very difficult if not impossible. Surrogacy often proves a better option for a whole range of people than adoption.
A surrogate is a woman who for financial and/or compassionate reasons agrees to bear a child for another woman who is incapable or less often unwilling to do so herself. The least controversial type of surrogacy is what is often called “altruistic surrogacy” and also referred to as compassionate surrogacy. Many of you may remember that in the TV series “Friends” one of the girls acted as a surrogate for her brother and his wife. Altruistic surrogacy generally occurs where people are related or close friends. Such acts seem noble and therefore, above reproach. This seems to make them morally justifiable. In some parts of the world, like most of the Australian territories with the exception of the Northern Territory, altruistic surrogacy is legal but not commercial surrogacy. When we bring strangers and money into the equation, the issues seem different. But ,of course, if we examine either of these positions in any depth, they do not hold up. The road to hell is paved with good intentions and to do something to help a friend does not make it the right thing to do from a societal point of view though it may be morally justifiable if you look at morality from a purely personal perspective. Should law be concerned with the personal perspective or the societal good? Taking money does not make an act intrinsically immoral or wrong. Compassion and money are not mutually exclusive and many commercial surrogates will still derive enormous satisfaction out of the feeling of having assisted a couple in difficulties. Many surrogate mothers will be and are motivated to offer this service not just for monetary gain. I am conscious too of how the use of certain words can act as a palliative to our sensibilities like “expenses” instead of “fees or payment”. All too often these words are used as a thin veneer for what are in fact commercial payments. In Ireland, for example, because of moral sensibilities around contraception we engaged in the duplicity of donating to family planning clinics rather than buying contraceptives for years. It was simply a ruse to get around the law and nothing more. Whether we called it a donation or not, we were in fact engaged in a commercial transaction, we were buying contraceptives. I think we need to take an honest look at this whole area.
It is fair to say that the waters become even murkier when we consider a comparatively wealthy western educated couple and a socially deprived developing world woman. The inequality of bargaining in such relationships gives us much pause for thought and worry. There is no doubt that the situation is ripe for exploitation, not only it has to be said by desperate Westerners, but also by corrupt forces within those countries themselves particularly countries where women are second class citizens as in India. To commission in India costs about one third of what it costs in the US. In my opinion the answer lies in regulation and International Agreements which won’t completely prevent corruption, they never do, but will go a goodly distance.
The question arises as to whether or not the use of international surrogates is a form of human trafficking? Why confine that question to “International” surrogates ? “International” in this context seems to be a euphemism for “poor”. However, asked in a general way the question has validity and there is no pat way to answer it. Many have answered that the price paid to the Indian surrogacy agency of around €15K of which the woman may receive €8K or so is relatively good compared to the standard of living in India. I have no doubt that this is true but is it an answer? In the recognised agencies in India the women surrogates receive excellent medical care during their pregnancies , ironically enormously better than the care they would receive in a normal standard pregnancy. Does the care given make it ok? I don’t think either of these facts goes to the root of the question. They simply appease but they do not satisfy. Are we saying that if we pay an Indian woman the same money as the US woman that would make it ok? If that is what we are saying then I think it is reasonable to argue that in the market place it is fair to pay what the market dictates. Overheads, standards of living, wages etc are all hugely cheaper in India. What the Indian woman can buy for €8K is equivalent to what the US woman can buy for €50K. On the other hand, if we are saying that the process is wrong and that it is inherently repugnant regardless of what we pay then that holds true for all surrogacy whether compassionate, for expenses only or for commercial reasons whether in India or anywhere else. When we talk about surrogacy as human trafficking I think we are equating it with prostitution. Is it an acceptable argument in relation to prostitution that if it is financed properly and the women are looked after medically and well paid, it is then ok? Many would say yes. There are others who will say that prostitution dehumanizes and alienates and is never justifiable. However, those are characteristic features of many transactions where physical labour is involved. We know prostitution exists regardless of legal bans. We know that outlawing it can often make it more dangerous and even more exploitative for the women on the streets. If we legalise it then where do we draw the line, would we ask prostitutes to pay taxes in other words make it a legitimate job? These are uncomfortable things to think about but we have to think about them. Such research as I am aware of in the UK conducted with surrogate mothers indicates that overwhelmingly surrogate mothers were happy with the experience of surrogacy and few of them experienced any deep or lasting sadness and regret about handing over the baby once the pregnancy concluded. I doubt that the same result would occur if we surveyed women who gave up their babies for adoption for example. There is nothing simple about this. At the end of the day, I think that if a woman wants to offer herself as a surrogate and if she is guaranteed proper medical care in reputable certified agencies, if the manner of how her surrogacy is conducted is exactly and precisely the same as in any Western country allowing this practice i.e., she is not subject to unacceptable health risks and if she is protected under contract and by the law of her country, then it seems to me that she has every right to choose this way of making money for herself and her family. However, such safeguards and guarantees would make surrogacy more expensive in the developing countries and would also only come about if the whole area is properly regulated by law. Surrogacy is now an International phenomenon. We have no law governing this area in Ireland. Developments in reproductive technology and the passing of enabling legislation in other countries, impacts of us whether we like it or not. Desperate Irish couples will commission surrogates abroad just like their counterparts in other countries and take their chances here with the law as it stands. Is this irresponsible, perhaps but it is nonetheless happening. We need to step into the breach and regulate.
The whole topic of reproductive technology could be used as a philosophical starting point for an ethics class. I have only touched on some of the ethical issues, there are many more not least what happens to the spare embryos, the by product of surrogacy? This one gets right down to the whole thorny issue of when life begins. From a legal standpoint in Ireland our controversial Article 40:3:3 which protects the life of the unborn is unclear as we now know as to whether protection applies from fertilization or from some subsequent point in the process. Lack of clarity in this area has implications for the provision of AHR services in Ireland. These and other issues are for another article. There are property rights in question around some of these products, issues of storage, questions as to who should and should not qualify as commissioning parent/s as well as issues of health, class and exploitation. I have only scratched the surface of some of these questions and not looked at others at all. I intend to revisit this whole area. Another fascinating question is the whole question of extremes – how far is too far? Do we allow people to commission designer babies if and when that technology becomes available which it will and if not, how do we stop them? Cloning? Dolly the sheep was one thing, but human beings? Finally, for now, to what extent are our imperfections as human being, our little design flaws or not so little design flaws, part of a necessary humanizing process for both ourselves and others? All this and I have not touched on the law yet but I will – later!