Wednesday 26 October 2016

Martina Devlin: Selfless act of carrying childless sister's babies shouldn't need a judge to decide who's the mother

Published 31/01/2013 | 17:00

A HUSBAND and wife are gripped by baby hunger. It is a deep-seated yearning that swells in urgency as they stumble and fall along their journey to parenthood.

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After a litany of disappointments, they turn to fertility treatment. Tests are carried out, and it is established that the woman in this couple is unable to carry their child. So her sister lends them her body for nine months.

Her gift is a declaration of sisterhood – a philanthropic gesture that's a concrete expression of love.

Now they have a chance to become parents. And even if it does not lead to a child, the loan of her womb from one woman to another is a celebration of the family bond.

A happy ending follows, however. The sister gives birth to their twins.

Medical science facilitates the miracle: embryos created by the couple are transferred to the sister's womb, implant successfully and grow into babies. Then, true to her word, the sister hands over the newborns to her childless sister and brother-in-law.

That's the story that emerged in the High Court this week. It's an uplifting account of family loyalty and devotion; an illustration, too, of the hope – and sometimes the fulfilment – afforded to couples by fertility treatment.

But there is a sting in the tail of this happy ever after. Ireland's legislative deficit in the area of assisted reproduction meant the couple felt obliged to go to court.

Only some of the details of the case, generally agreed to be a landmark one, have entered the public domain due to reporting restrictions. Quite properly, the anonymity of the three adults and two children involved has been preserved, yet it is also appropriate for the public interest to be considered.

Setting aside the medical jargon and legal terminology, the human dilemma here can be reduced to one simple question, though if the answer were equally straightforward there would be no need to go to law. Who is the mother? The woman who carried those two babies or the woman on whose behalf she acted?

The sister was the couple's surrogate, but the babies are composed entirely of their DNA: the husband's sperm and the wife's eggs, brought together under laboratory conditions, created the embryos which became their two children.

The birth certificate, however, lists the surrogate as the mother, with all the legal implications that entails.

Selflessly, she renounced any rights to the children, giving them up as soon as they were born to be raised by the couple. In every practical, emotional and biological sense, the couple are the children's parents.

Except legally.

The action has been brought by the couple because they want their names on their children's birth certificates, their parentage acknowledged in law.

They are challenging the State's refusal to do so – its position is that the legal mother is the woman who gave birth. Or, as Chief Registrar Kieran Feely said, explaining why he had turned down their original application, the "mater certa semper est" principle was applied: motherhood is always certain.

Except that, in an era of assisted reproduction, that certainty is debatable.

Couples in an unusual situation such as the one currently under consideration could apply to adopt their own children. It is a compromise solution. Presumably, it doesn't appeal to this couple – instead, they are seeking legal recognition of their biological relationship to the children.

Fortunately for them, the sister is raising no objections. The case would be more complex if she reconsidered and wanted to claim the children as her own. Even where surrogacy is an act of philanthropy, second thoughts can arise.

The case demonstrates why legal clarity is needed on issues arising from surrogacy and other areas of assisted reproduction.

The High Court has an important job of work to do – a task left undone by government.

In her evidence to the court, fertility specialist Dr Mary Wingfield expressed frustration at the State's failure to legislate to date. It was "not right" that a couple should be obliged to go to court about this matter, she said.

Dr Wingfield was a member of the Commission on Assisted Reproduction which reported back in 2004, and whose work inexplicably was left gathering cobwebs.

Surrogacy was included among the commission's recommendations, with the case made for children to be listed as the offspring of the "commissioning couple" as they were termed. The phrase jars, with its implications of babies for cash, although we must accept that was not the intention.

JUST to be clear, there is a distinction to be made between commercial surrogacy, where a woman is paid for her services, and altruistic surrogacy. The former is illegal in many jurisdictions, though it is permissible to pay a surrogate mother's expenses.

While it was a mistake to shelve the commission's report, it is reassuring to see the High Court recognises the significance of this case.

The Attorney General pressed for an in camera hearing, but the judge adopted a more nuanced view, balancing the competing interests. In permitting a certain amount of media coverage, Mr Justice Henry Abbott observed that the children ought not to be used "as an instrument of avoiding the public gaze".

And so a 21st Century version of the Judgment of Solomon is under way. When is a mother not a mother?

Irish Independent

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