Friday 21 October 2016

Mum at the centre of RTE surrogacy documentary: 'I've no legal entitlements... in the eyes of the state I am not their mother'

Sean Malone and Fiona Whyte made national news a year ago when they returned from India with twins who were born through surrogacy. We caught up with the couple and heard of the emotional journey they've gone on and the legal quagmire they now face

Donal Lynch

Published 29/06/2015 | 02:30

Happy couple: Sean and Fiona are busy looking after their beautiful children Donal and Ruby who were born to a surrogate mother in Mumbai but who now live with mum and dad in Co Clare.
Happy couple: Sean and Fiona are busy looking after their beautiful children Donal and Ruby who were born to a surrogate mother in Mumbai but who now live with mum and dad in Co Clare.
Fiona Whyte and Sean Malone desperately wanted a child and were given that chance with the help of Shobha
Fiona Whyte and Sean Malone with their surrogate Shobha.

The dark-eyed toddlers still attract a second look. The girl has a slight look of her father about her but otherwise they don't seem to strongly resemble their parents, who might anyway be old enough to be the their grandparents. The children are walking now, and beginning to talk and everywhere they go they are tiny curiosities. Strangers tentatively introduce themselves. Just last week the family were in Galway and as they made their way up to Salthill the question inevitably came again: "where did you get them?"

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The children are walking now, and beginning to talk and everywhere they go they are tiny curiosities. Strangers tentatively introduce themselves. Just last week the family were in Galway and as they made their way up to Salthill  the question inevitably came again: "where did you get them?"

Sean Malone (55) and Fiona Whyte (53) have long since resigned themselves to the frequency of such inquiries, which are mostly good natured and supportive. Their young twins became famous last year after an RTE documentary, Her Body, Our Babies, which showed their epic journey to India to have two children through surrogacy. In the interim months the twins have become well known faces around the sleepy town of Miltown Malbay, in West Clare, where Sean owns a pub. Since the documentary was aired, he and Fiona have waged a legal battle to become recognised as the parents of their two children. The children have Indian birth certificates, with both Sean and Fiona named as their parents on the certs. Last July the couple went to court to formalise their status in relation to the children. Sean sought a declaration of parentage and guardianship. "If the court ruled in our favour that would leave Sean open to apply for passports for them," Fiona says. "That was what happened and now Sean is their legal guardian and they have their own passports."

Prior to formalising the situation in court neither Sean nor Fiona could sign any consent on behalf of the twins, instead the state was considered to be the twins' legal guardian. Despite Sean now being their guardian, the legal limbo the children find themselves in presents a number of potential complications. If they were injured in an accident or had to have a life threatening operation Fiona would be unable to sign the hospital forms giving parental consent. Sean would have to be present. "I've no legal entitlements or rights," Fiona summarises. "In the eyes of the state I am not their mother."

The law in this area is in a state of flux. Last November the State won a Supreme Court appeal, with the court ruling that the genetic mother of twins born to a surrogate was not entitled to be registered as their legal mother on their birth certificates. Enda Kenny recently said that there would be no legislation on surrogacy before the general election and the official inaction is a source of frustration to both Sean and Fiona.

"Minister Varadkar, in the wake of last years' Supreme Court ruling, said this February that he would be introducing legislation, but where that is at right at this moment nobody knows," Fiona says. She felt that the prominence that issues around surrogacy received in the run up to the gay marriage referendum were by-and-large unhelpful: "I heard (senator and vocal no campaigner) Ronan Mullen say that when a child born by surrogacy is taken away from its birth mother that is the last time that child will know a mother's love and I just thought, oh my God that is despicable to say that. Does that mean adoptive parents don't love their children like biological parents? We went through so much to bring Donal and Ruby into the world and to bring them home. They are our children. But the way some families are created is not as simple as others."

Fiona Whyte and Sean Malone desperately wanted a child and were given that chance with the help of Shobha
Fiona Whyte and Sean Malone desperately wanted a child and were given that chance with the help of Shobha
Happy couple: Sean and Fiona are busy looking after their beautiful children Donal and Ruby who were born to a surrogate mother in Mumbai but who now live with mum and dad in Co Clare.
Fiona Whyte and Sean Malone with their surrogate Shobha.

By contrast with the huge undertaking that brought Donal and Ruby into the world there was an organic simplicity to the way Sean and Fiona met. They grew up three doors down from each other in Miltown Malbay and played together on the street as children. As they grew up, they went their separate ways, with Fiona moving to Dublin to train as a nurse and Sean going to work for Posts and Telegraphs. Both went on to get married and, eventually divorced, from other people. For much of her adult life Fiona lived in Castleknock in Dublin with her family - she has 21-year-old and 24-year-old sons. Sean has a son, Tomas, who is 20-years-old, and has special needs. "I kept coming back to see my mother," Fiona recalls. "Sean opened a pub in the town, and naturally I came in for a pint. We rekindled a friendship which in turn led to a relationship."  

I wonder if the fact that they both had children with other people lessened the imperative for them to have a child together. "We were both very fortunate to have children already. Our three sons are so important to us and we love them dearly," Fiona explains. "But we really wanted to have a child together. We're soul mates and the natural progression in any relationship is to try to have a child together and sometimes you do go to any lengths to achieve what you want in life."

The couple initially tried to have a child through IVF. They were treated at a clinic in Spain and were successful on the first attempt, but Fiona miscarried. They tried four more times but each time they were unsuccessful. Adoption was not an option, assuming they wanted a baby: during the process they were informed by social workers here that due to their age they would only be eligible to get an older child, possibly a child with special needs.

They saw no other option but to go down the road of surrogacy. They briefly considered America but it would have been cost-prohibitive to do it there. In some European countries, such as the UK, you have to be domiciled in the country to undertake a surrogacy there. The Ukraine was briefly considered, but dismissed, because one of the criteria for there was that you had to be married, which they were not at that point. 

In the end Sean and Fiona opted to try to find a surrogate in India, with Fiona making preliminary inquiries online and managing to speak to one person who had gone to India. The couple opted to travel to the reputable and regulated Corion Fertility Clinic in Mumbai, India, where Sean gave a sperm sample and they selected the surrogate - Shobha - whose eggs were not used.

"There was a number of Indian ladies waiting to be chosen. We asked which one was the most well-prepared medically," Fiona says of the selection process for the surrogate, Shobha, who came from a poor run-down "colony" of Mumbai. The couple chose the egg donor from a number of profiles sent to them. They never met the donor, however they were made aware through the clinic that she was 25 and, when shown the profile, Fiona saw that both her age and her hormone levels were perfect for donating eggs. 

The agreement was that Shobha would make around €5,000 out of the €30,000 that Sean and Fiona paid the clinic. For many watching the documentary there was squeamishness around the economic inequities that brought Shobha to the difficult decision to carry someone else's child. "From that point of view my conscience is 100pc clear as to how she was treated," Sean says. "(The money) will mean, for instance, that her children could rise above where she came from. She would be able to use the money to educate her children and buy a new and better place for her family to live. They are trapped in a lifestyle of poverty there. We were told that this was as much as she could expect to earn in 10 years." 

Surrogacy is legal but mainly unregulated in India and the situation there has been described as something of a wild west, with surrogates subject to exploitation by middlemen, clinics and would-be parents. However Sean and Fiona say that every aspect of Shobha's surrogacy was carefully monitored and that they were happy with the standards of the clinic. The natural bond that occurs between a woman and child during and after childbirth was surmountable in this case, Sean and Fiona say, by the contract and procedures that the clinic put in place. "The criteria for the women who take part is that they have to have already been mothers, so they know what childbirth entails," Fiona explains. "In our situation Shobha would have been fully aware of this and the clinic would have provided counselling to her. Everything would be explained to her in legal terms in her own language. She and her husband jointly made the decision."

The documentary showed the fairly sparse living conditions that the surrogates in the Mumbai clinic were housed in but Sean and Fiona say they had no qualms about the quality of the care she received. "We were allowed to Skype with her at any point", Fiona says. "We were allowed to meet with her. All the medical reports came back to us very quickly. They really put our minds at ease." 

Perhaps the most harrowing part of the documentary dealt with the difficult, almost Sophie's Choice-type situation, that Sean and Fiona were faced with. The background to it was the information the couple were given to the effect that in order to give the surrogate the best chance of successfully carrying a baby, three embryos would be implanted in her. They were also told that in the unlikely event that all three embryos developed into foetuses there would have to be what was termed a foetal reduction; effectively one of the foetuses would be aborted. The reason given for this was that carrying triplets would have presented too great a health risk to the mother and the babies. "Because of our age it was the last attempt for us", Fiona says.

"We were trying to optimise our chances and we took advice in relation to that. We were told that the three embryos would give the best chance. When we were told it was a triple pregnancy there was a chance of what's termed spontaneous reduction (that the woman would miscarry one baby) and we had hoped that would happen. For us it was so emotional, because we had tried IVF for so long with two embryos and were unsuccessful. We asked if there was any possibility of going forward with three and we were told no. We didn't have any say in that." (She later points out that there may be scenarios where the surrogate would be permitted to carry three babies to term). 

After the twins were born Fiona sneaked into Shobha's room in violation of the clinic and hospital guidelines. "You're not supposed to see her after the birth, but Fiona went up to the ward anyway," Sean recalls. "There was one part of the documentary where I expressed concern that (the consultant-in-charge) speaks in a very abrupt manner (about Shobha) but I think that's just the manner that professionals have over there. They would have spoken to us and staff members quite abruptly too, for example."  

Fiona and Sean were allowed to see the children immediately. "We were told 'this is the boy and this is the girl'" Fiona recalls. "Donal was taken down to ICU for observation. We didn't get to hold him or Ruby until the following day. That they were born and they were healthy and everything went well - all that brought huge relief. And then there was the terrifying thought of 'well now we're in charge of these two very vulnerable babies and all the responsibility of that and would we be able?' And then there was just this huge surge of love because these are our babies, we brought them into the world and they're ours."

Getting the children out of India was a complex process. "The Irish government and the embassy in Delhi kept moving the goalposts; they wanted something today and then something else tomorrow", Fiona recalls. "This took place between the passport office in Dublin and the Irish embassy. We were jumping through hoops and it set us back by 10 days".

Shobha and her husband were at home at this stage and they had to be brought back to the clinic to sign more affidavits. As the red tape was being sorted out Fiona stayed in the hotel room looking after the babies while Sean did most of the traipsing around the various offices in the huge, steaming metropolis of Mumbai.  

The couple anxiously waited while DNA samples were sent first to Ireland, then England for testing, then the results were sent back to Ireland and from there back to India. And as they applied to the Foreign Regional Registration Office in Mumbai for their exit visas which would allow them to exit India with the children the whole city was on the brink of shutting down for a week for a Hindu festival but in the nick of time they managed to get their travel documents in order.

After all the drama and difficulty of the previous months and years the flight back to Ireland felt like the sweetest of releases for the couple. "In London we waited for the connecting flight and then the flight back to Shannon was something I will never forget," Sean recalls.

"Our family and friends were there to meet us, it was morning time and it was Ruby and Donal's first experience of rain. We arrived back into Miltown Malbay and they were unveiling a statue of (famous uileann piper) Willie Clancy. Someone once asked me, 'when will you celebrate: when you know the pregnancy has worked? Or will you celebrate when you're on the flight out? Or will you celebrate when they're born?' But in fact we didn't really celebrate until we were coming back into Shannon on that last flight. The staff on the plane gave us a glass of champagne. And I think that was the first moment we finally relaxed."

The couple say that they intend to be open and honest with Donal and Ruby as soon as is practical. And what if the children at some point wish to track down Shobha? "They won't need to track her down, we have her address", Fiona responds. "If they feel that is what they need to do we'll support them every step of the way. I did ask for her address, I made a point of that. But it's important to note that there is no genetic connection between Shobha and Donal and Ruby." 

What about the energy it takes to take on two new babies in your 50s; I wonder if they have found that daunting? "Not at all, they've slept through the night from the start, and anyway we have a lot of energy," Fiona says. "We work and have a farm and get up every morning. We're tired but I don't think any more so than a younger couple." 

The couple say they have had numerous Irish couples reaching out to them since the documentary aired. The legal quagmire that the children still find themselves in needs urgent attention, Fiona says, however she also emphasises that resolving the legal situation will be merely official recognition of a family that is as real and valid as any other: "They are our babies, we brought them into this world, we're responsible for them, and we love them more than anything. That's the reality, whether the government recognises it or not." 

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