Spotlight on surrogacy: the birth of an industry
With surrogacy in the spotlight after a candid statement from Rosanna Davison, John Meagher explores the legal and practical hazards for families who tread this path
It was the Friday of the local and European elections, May 25, and Kilkenny school principal Kathy Egan had the day off work as the school was being used as a voting centre.
But it was to become a day like no other. She got a call out of the blue to tell her that her baby boy, Luke, had been born in a hospital some 2,500km away in Lviv, Ukraine.
Please log in or register with Independent.ie for free access to this article.
Luke was due to arrive a month later but Mariana, the young Ukrainian surrogate who was carrying Kathy and her husband Brian's precious baby, went into labour four weeks early.
Any interest in the election went out the window as the Egans and their son Harry - pictured on the front of Review - scrambled to arrange the next available fight to the former Soviet country. The got there via Madrid and were united with Luke for the first time on the Sunday.
It was a joyous moment after years of heartbreak for Kathy and Brian. The couple suffered no fewer than seven miscarriages as they tried to give Harry - who turned 10 this week - a sibling.
"We went through so much and it felt like a last resort," Kathy says, "but I would shout it from the rooftops for any couple who feels there's no hope left."
"It was very hard to keep going in to look at scans and be told you'd lost a baby," Brian adds. "Harry was born two years after we got married - not a bother, the most straightforward pregnancy. But then it just didn't happen - we never had an issue with conceiving - Kathy always got pregnant. We didn't need IVF…"
The couple say the miscarriages took a psychological and physical toll on Kathy and they were desperate to pursue the only other way they could think of to have their baby.
"To be honest, we knew very little about surrogacy when we decided we'd go down that route," Kathy says, "and there was a lot of fear about it in the early stages. But I'd do it again in a heartbeat."
When the Egans first started researching the options, they learned quickly that the Ukraine was the place where most Irish went. "The US is just too expensive," Brian says, "and while it still costs a lot of money to do this, the Ukraine is much more affordable."
Increasing numbers of Irish couples having children through surrogacy have gone there over the past decade with 23 babies granted emergency travel certificates to return to Ireland last year from the Ukraine alone. And with one in six families experiencing fertility issues in Ireland, options such as surrogacy are likely to become more commonplace.
But even for those couples who successfully manage to have a child through surrogacy, there are still obstacles to surmount. Right now, Kathy Egan is not recognised as Luke's mother under Irish law - despite the fact that she and Brian are his genetic parents. It is the woman who gave birth who is legally deemed the mother, despite the fact that Ukrainian law acknowledges that the surrogate has no legal right over the child.
"It's very tough," Kathy says. "In the Ukraine, I am legally regarded as Luke's mother, but not in Ireland. And I have to wait until he's two [years old] before I can apply for a declaration of parentage. And that's only since 2015 that that has become possible."
"Luke now looks exactly like Harry did at two months," Brian says. "You couldn't tell them apart." And yet Irish law does not see Kathy as his legal parent.
"I know 100pc what it's like to be a mammy and to go through all of that [pregnancy, morning sickness, labour] and my sense of being a mother is no different with Luke. Looking at the bigger picture, from a legal standpoint, it's hugely unfair.
"I'm a school principal and I get no maternity leave. He's 100pc genetically our boy and I need to go to court and prove that I can look after him, to be allowed to become his mum on paper."
Surrogacy is in the news again this week after the model and nutritionist Rosanna Davison announced on Instagram that she and husband Wes Quirke would be having a baby in November through this route. The former Miss World and daughter of Chris de Burgh wrote movingly that the couple had tried to start a family but had suffered numerous miscarriages.
"We've dreamed of being parents for many years and I would have loved to carry my own baby," she wrote, "but for reasons unknown - most likely embryo rejection due to an overactive immune system - and although tests show excellent fertility, I've been unable to sustain any of my pregnancies, despite the best efforts of reproductive immunology experts and a lot of immune-suppressant medication, injections, intravenous infusions and surgery.
"Following medical advice, gestational surrogacy abroad became our only viable option for a biological child and we're so thankful for the wonders of modern medicine and reproductive science."
The couple will find themselves in the legal limbo that people like Kathy and Brian Egan are in, as family law expert Lydia Bracken of the University of Limerick explains.
"At present, there's no specific law relating to surrogacy," she says. "What that means is that if a child is born through surrogacy, the same law would apply in that situation as it would in any other type of pregnancy where a child is born. Our law currently says that the woman who gives birth to the child is always regarded as the legal mother. If she's married to a man, her husband is presumed to be the legal father and if she's not married, then the genetic father is the legal father.
"That's obviously problematic in the case of surrogacy because the surrogate is going to be the one who gives birth to the child so it means that in, say, Rosanna Davison's case, she's not going to be regarded as the legal mother when her child is born."
She says the options are limited at present when it comes to legal recognition. "Her only opportunity to have a legal relationship with the child would be to do something like a second parent adoption or by applying for guardianship in respect of the child, but for that you have to wait two years before you can apply to the courts."
A proposed piece of legislation, the Assisted Human Reproduction Bill 2017, aims to regulate surrogacy and it is still working its way through the houses of the Oireachtas. But legal experts such as Lydia Bracken believe it doesn't do nearly enough to address the situation as it stands.
"It's a very restrictive model of surrogacy that will be covered," she says. "It can only be a domestic surrogacy so it will only cover surrogacy that only happens in Ireland. It wouldn't cover you if you choose to go to another country.
"It only covers what's known as gestational arrangements - so, that means that the surrogate herself can't provide the egg, so the egg has to come from either the intended mother or a donor and also it has to be non-commercial so the surrogate can't be paid anything more than reasonable expenses in order to be involved in the pregnancy - she can't do this as a career so to speak."
Most damningly, considering that couples feel they have to go abroad to have a child through surrogacy, the new law - as it currently stands - will not accommodate international surrogacy.
And it's this aspect of what's proposed that frustrates Annette Hickey, a family law solicitor who specialises in fertility and surrogacy law. It's she who is advising Kathy and Brian Egan, among many others.
"People have no option but to go to an international clinic to have a baby through surrogacy," she says.
"How many people would know somebody who would be prepared to carry a child for them in Ireland on a non-commercial basis?
"There have been a huge number of concerns raised about the domestic nature of what's being proposed and lots of submissions have been made to the Government to show how it's not going to work. And there's been a common thread from all sectors of the community - both heterosexual and LGBT couples have the same concerns."
The Kilkenny-based solicitor is all too familiar with the distress that Irish couples feel knowing that the law does not give legal acknowledgement to the mother - and the proposed laws do little to address the situation as it currently stands.
"Surrogacy is something that affects ordinary people, not just the Kim Kardashians of this world [the US reality star and husband rapper Kanye West have two children born via surrogacy, and two born naturally].
"We did events last year in Galway and Cork and around the country, and we were meeting farmers and ordinary people. They're remortgaging their house to pay for the surrogacy. We've one couple whose parents have freed up a mortgage for them and remortgaged their house.
"Nobody chooses surrogacy," she adds. "This is the last hope. If this doesn't work, then the dream is over. The people that come into us are desperate. They've been on a long, long road. This is something that's not easy. They've spent a lot of money on IVF, they could have had miscarriages, or cancer treatments, women with cystic fibrosis, women with congenital heart disease… surrogacy is not something that anyone ever wants."
Helen Browne, the co-founder of National Infertility Support and Information Group (NISIG), says she has nothing but admiration for those who go down the surrogacy route. "They're amazing people because it's a very arduous journey. Surrogacy is seen as a last resort - the majority of people who would have gone for it would have been through multiple miscarriages."
NISIG offers support meetings for those considering surrogacy. "People who have children come to the meeting to support those who are on the journey. They can give them an insight into the highs and lows, and seeing the joy that parents feel having had children this way helps alleviate a few of the unknowns they may have."
Having that support network is vital, she believes, and it is the reason why she established the group in the mid-1990s. IVF had been used in Ireland for 10 years at that stage, and despite going through multiple rounds of the treatment, Helen and her husband were unable to start a family.
Nobody talked of surrogacy as an option then. "I don't know if I would have had the strength, personally, but who's to know?"
And it's not just mental fortitude that's required. Even those who go down the more affordable route of Ukraine will likely face a bill of about €60,000 for both the surrogacy arrangement, travel and legal costs when they get back home.
Brian Egan estimates that when unpaid parental leave is taken into account, taking the surrogacy option will have cost Kathy and him just over €100,000. But, he says, there's no price that can be placed on happiness and having a little 10-week old boy to complete the family.
The Egans say the situation was a win-win for both them and their surrogate, Mariana. "She has a six-year-old daughter and the fee will have helped put her through college, to give her a life that she wouldn't have known herself and to be able to maybe buy an apartment," Kathy says.
It's Brian's understanding that, through the Ukraine clinic, Mariana would have received payment several times in excess of the national annual average industrial wage to carry baby Luke.
"We were overjoyed when we got to meet him for the first time," he says. "There were times where it felt as though we'd never have another baby and there he was."
It's a sentiment echoed by his wife. "It's going to take me another year to process the whole lot of it," Kathy Egan says with a chuckle. "It was the very best thing to do for our family. I'm so glad we didn't give up and we tried one more option. It's made us so happy."