Is it really impossible to prohibit surrogacy?

Would a ban on surrogacy in Ireland be futile because people would simply travel abroad for it instead? This seems to be the argument of UCG law lecturer, Haley Mulligan, in a letter to the Irish Times. She was responding to Jennifer Lahl who addressed an Iona Institute meeting on surrogacy last week and called for Ireland to join France, Germany, Austria, Sweden and others, in banning, or seeking to ban, surrogacy outright.

Mulligan acknowledges in her letter that Lahl raised “very real concerns that most people would share about surrogacy, such as the commodification of children and the impact upon the gestational mother’s mental health.” She admits “these are issues that need to be addressed”. Yet, she doesn’t address them, and seems to throw her hat at any attempt to do so.

The futility argument completely overlooks whether surrogacy is good or bad in itself. Yet, if we adopted ‘people are going to find ways around a ban’ as a general principle of law-making then how many other ‘services’ would we have to make freely available in the State because people will always seek ways to circumvent the law, including by going overseas?

Prof. Mulligan adds a further argument that a ban here would impinge on couples bringing back surrogate-produced babies from abroad and may result in some babies being separated from their genetic mothers. However, she offers zero evidence that this would happen here. Indeed, countries with bans on domestic surrogacy usually accommodate foreign-born, surrogate-born babies, though with some kind of sanction in place that acts as a deterrent to the practice in the first place. Could we consider heavy fines?

Finally, even her contention that a global ban is “unreasonable and unlikely” is itself subject to debate. For instance, the French Prime Minister, Manuel Valls, a one-time supporter of surrogacy, changed his mind about the practice in 2014 saying 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.” Moreover, he proposed an international treaty that would require countries where surrogacy is legal to respect the laws of places where it isn’t, and refuse to offer surrogacy services to couples from those countries.

If strict International protocols govern international adoption, there is no reason that a similar set of protocols could not govern surrogacy laws. But before the international question might be settled, we should first decide for ourselves whether we stand with the likes of France, Germany, Sweden, and others in opposing the commodification of children and the exploitation of women and do our best to ban the practice of surrogacy outright.