December 6th 2014

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Articles from this issue:

SOCIETY The wealth of nations depends on the health of families

NATIONAL AFFAIRS Latest federal push for same-sex 'marriage'

MARRIAGE LAW Can state parliaments legislate for same-sex marriage?

TRIBUTE Famed Australian bioethicist who never sought public honours

CANBERRA OBSERVED Palmer party Senate split stymies government agenda

EDITORIAL Behind Obama's unfriendly behaviour at G20

ENVIRONMENT US-China climate agreement a cynical political ploy

AGRICULTURE Hope Dairies' big export venture to China

ECONOMIC AFFAIRS Lesson of Japan's debt-free economic stimulus

EUROPE Will Ireland be the next European nation to ban surrogacy?

FOREIGN AFFAIRS Cross-strait ties remain Taiwan's biggest challenge

OPINION Has 'quality' education for girls rally come to this?

CULTURE Visual media crucial for conveying truth

BOOK REVIEW A battle between titans

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Will Ireland be the next European nation to ban surrogacy?

by Patrick J. Byrne

News Weekly, December 6, 2014

France’s socialist Prime Minister, Manuel Valls, wants an international treaty banning countries that allow surrogacy from providing surrogate children to couples who come from countries where surrogacy is prohibited. 

French Prime Minister

Manuel Valls

In 2011, Valls had supported surrogacy, describing it as “an inevitable development”. But since he was appointed Prime Minister of France in April this year, he has changed his mind. 

He has described surrogacy as “an intolerable commercialisation of human beings” and declared that “France is opposed to surrogacy because she is opposed, in the name of her values, in the name of progress and humanism, to all forms of commercialisation of human beings and experimentation in this area.” 

Many countries in Europe ban surrogacy arrangements, including Finland, France, Georgia, Italy, Serbia, Spain and Switzerland. 

Ireland has no law on surrogacy, but the issue is under scrutiny after contrary court decisions. 

Ireland’s High Court had originally ruled in favour of a genetic mother as being the legal mother of twins born to her surrogate sister because the babies are more hers biologically speaking than the birth mother. 

However, the Supreme Court — the highest judicial authority in Ireland — overturned the High Court ruling in favour of the gestational mother, saying that an Irish birth certificate recorded the birth mother only. 

The confusion in the court rulings highlights why a number of European countries ban surrogacy altogether, says David Quinn, founder of Ireland’s Iona Institute. 

Writing in the Irish Independent (November 11, 2014), Quinn points out that “surrogacy creates an automatic and unavoidable ambiguity about who the mother of a child really is. Is the mother the woman who gave birth to the baby (the surrogate), or is it the genetic mother who provided the egg? 

“The answer is that both women have a valid claim to be the child’s mother because motherhood has been split between two women.” 

The Supreme Court ruling noted that generations of children had been born in Ireland through assisted reproduction “into a legal half world” where the only constraints on the process were those imposed by the dictates of a private market and medical practitioners. 

The ball is now in the Government’s court, says Quinn. “What should it do? In justice, it should follow the example of countries like Germany and France and prohibit surrogacy completely. This is the one and only way to avoid the kind of automatic ambiguity surrogacy creates about who the mother of a child really is. 

“Children deserve no less. The identity of a child’s mother should be certain and it can never be certain when surrogacy exists, no matter what kind of law is passed. 

“This is not the only insurmountable moral dilemma created by surrogacy. It also unavoidably makes the child the object of a contract. This is the case whether the surrogacy contract is commercial or non-commercial, written or verbal, because the surrogate agrees in every case to bear a baby for the commissioning adults and then to hand the baby over to them at the end of the nine months. 

“It ought to go without saying that children should never be the object of a contract.” 

Quinn pointed to the scandal over the Baby Gammy case, where an Australian couple refused to take both of the twins born to their Thai surrogate mother. The couple took only one of the twins, who was healthy, but refused Gammy because he had Down Syndrome. 

Quinn points out that this situation can arise regardless of whether the child was the result of altruistic or commercial surrogacy. Why is this so? 

“Because surrogacy contracts of any kind are almost never enforceable. 

“Is the answer therefore to make them enforceable, as a handful of U.S. states do? No, because if they are made enforceable, then we are faced with the prospect of a baby being forcibly removed from the arms of a surrogate mother who has changed her mind about handing over the baby. 

“So whether we make surrogacy contracts enforceable or unenforceable, we encounter deep problems.” 

Ireland’s health minister, Leo Varadkar, has promised a law on surrogacy and assisted human reproduction generally. 

Quinn argues that, rather than listen to representatives of the assisted human reproduction industry and their lawyers, the health minister “should pay attention to what countries like France, Germany and Austria have done and why. He should then emulate them by prohibiting surrogacy. 

“That is the only way to stop the exploitation of women, prevent children being made the objects of a contract and ensure that children are certain of who is their mother.” 

Particularly in the wake of the Baby Gammy case, Australia should also be banning surrogacy and joining with other nations to ban countries that allow surrogacy from providing surrogate children to couples who come from countries where surrogacy is prohibited. 

Patrick J. Byrne is national vice-president of the National Civic Council. 



Dearbhall McDonald, “Court surrogacy ruling leaves children in ‘legal half-world’”, The Irish Independent, November 8, 2014.
URL: www.independent.ie/irish-news/courts/court-surrogacy-ruling-leaves-children-in-legal-halfworld-30728071.html

Ben Conroy, “How France’s socialist Prime Minister came to oppose surrogacy”, The Iona Blog, The Iona Institute, November 10, 2014.
URL: www.ionainstitute.ie/index.php?id=3754

David Quinn, “France and Germany ban surrogacy — so should we”, The Irish Independent, November 11, 2014.
URL: www.independent.ie/opinion/columnists/david-quinn/france-and-germany-ban-surrogacy-so-should-we-30727878.html

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