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Refusing to engage with the ethical harms of surrogacy and donor-conception

The General Scheme of the Assisted Human Reproduction Bill [1] was before the Oireachtas Health Committee this week. The proposed law covers such issues as sperm and egg and embryo “donations”, pre-implantation diagnosis and sex selection, embryonic and stem cell research, etc.  The hearing was anything but constructive. The well-reasoned objections of witnesses like Emma O’Friel and Dr Joanna Rose, who was conceived via donor sperm, were dismissed as mere ‘opinions’.

The discussion focused mainly on surrogacy and so-called ‘donation’ of gametes, which is in reality a commercial transaction because mostly eggs and sperm are sold.

Joanna Rose spoke strongly against any form of surrogacy, which a number of European countries ban in all forms.

Dr Rose, whose court case brought about a ban on anonymous donations in the United Kingdom, lamented the lack of consultation of all stakeholders, especially those who are donor-conceived like herself, in the drafting process of this legislation.

“Reproductive technology is a social experiment and the adverse impacts and consequences are unravelling over time around the world. Only donor offspring can inform on these things. We pay for our own counselling, genetic tests to find lost relatives and live with false birth certificates and absent or misleading medical histories. We have [lost] ethnicities and ancestors, unparalleled numbers of siblings and half siblings and all this confronts most of us privately in adulthood. There is little understanding of the resultant grief and its disenfranchisement by our families and community at large.”

Some of the members of the Joint Committee denied any evidence of harm to children produced artificially. Emma O’Friel objected to that. “This Bill, if it goes ahead, will consolidate the disadvantaged position of donor-conceived people who will now be bound by law to accept inequality and injustices.  … Adoptees of the last century as children would have shown little or no signs of the pain to come. The impact of injustices done in our childhood can only be dealt with in adulthood. We know that that there are thousands of donor-conceived people world-wide who testify to the long-term harm. Where is the assessment of this harm?”

Dr Rose stated that she will never support the intentional severance of the relationship of genetic kin for any cause other than a last resort for child protection. “Donor conception is about child production, not child protection. Contrasting with adoption, the intended parents are not even screened.”

Any practice that intentionally separates a child from its natural parents is not acceptable. Once gamete donation and surrogacy are allowed, even in restricted way, all sort of legal and ethical complications arise.

The Bill, while claiming to ban commercial surrogacy, would still allow the payment of “reasonable expenses”, which include medical expenses, travel and accommodation before and during the pregnancy, reimbursement for loss of earnings, counselling, expenses for the surrogate’s husband, and other. Such “non-commercial” surrogacy is still profitable and would obviously appeal many women.

Emma O’Friel noted that there is no compensation for donating any other part of our bodies. What is presented as a “treatment” is not a medical procedure, it does not treat fertility.

Professor Deirdre Madden, from University College Cork, called for a relaxation of the rules against paying surrogates. “The consequences of transgression are extremely harsh and expose the intended parents to potential prosecution with significant penalties”. But the rationale for those limits is to avoid the exploitation of poorer women.

She acknowledged that encouraging the commercialisation of wombs and children raises legitimate ethical concerns but she maintained that the avoidance of the exploitation will not be achieved by this Bill because it does not prevent it to happen in different jurisdictions. “Prohibition has pushed surrogacy in the underground or forced people to go abroad.” This argument is totally defeatist. It says that if a law can be circumvented then law must be changed but all laws can be circumvented, does this means we should haven laws?

Countries like Germany, France, Italy, Spain do not permit surrogacy [2] at all. Even permitting only “non-commercial surrogacy” would make Ireland one of most liberal regimes in Europe. In Sweden, for example, feminist lobby groups [3] have welcomed the government announcement that surrogacy will not be in any form legalised [4].

Another contentious issue associated with gamete donation and surrogacy is the disclosure of information about genetic origin.

Prof. Madden claimed that children will have access to information about their genetic parents but, after correction, admitted that this Bill would allow it only when they are adults. Moreover, they have to request information and many are not aware of the circumstances of their conception.

Senator Ronan Mullen wondered if the proposed Bill will effectively falsify birth certificates, as the circumstances of the artificial conception and the genetic links of the one who is conceived will not be recorded. This was recently highlighted by an article of the Law Society Gazette [5].

Prof. Madden replied that all certificates are already a legal fiction as we don’t carry genetic tests on fathers of naturally conceived children. But this does not compare like with like. When a man is married to the mother of his child, paternity is assumed and no deliberate falsification of a birth cert takes place. In many cases, with donor conception, falsification is deliberate.

A notable feature of the hearing was the number of times Deputy Kate O’Connell dismissed the testimony of Emma O’Friel and Joanna Rose as “opinions”.

For example, the hearing ended with Emma O’Friel speaking of the harm suffered by people conceived through donation only to have Deputy O’Connell tell her that this was only an “opinion”. But the harm is a fact. Joanna Rose testifies to the harm through her own personal experience and that of thousands of others like her, who believe donor-conception is an attack on their right to the identity that is the birthright of those born to and raised by their natural parents.

Dismissing what you don’t agree with as a mere “opinion” is a way of avoiding engagement with the substance of an argument.

In this video, Jennifer Lahl from the Center for Bioethics and Culture [7] explains why surrogacy and gamete donation are against human rights.

See  also her recent article Real Grownups Know No One Has the Right to a Child [8].