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VOICES

Surrogacy Hannah McCarthy travels to Kenya and finds a growing number of surrogate cases there

How Irish people use international surrogacy raises thorny ethical issues, writes McCarthy from Nairobi.

WITH DOMESTIC SURROGACY options limited in Ireland, international surrogacy has become a significant pathway for Irish people wishing to become parents. While offering hope to many, this practice raises some thorny ethical questions and can place both surrogates and commissioning parents in vulnerable positions.

High costs and the Russian invasion of Ukraine have limited international surrogacy options for Irish people. The cost of surrogacy in the US and Canada, where surrogacy is well-regulated and accepting of LGBTQ+ people, is prohibitively expensive for many in Ireland. While Ukraine was a popular and more affordable option for many Irish people prior to the Russian invasion, since the conflict began in 2022 many – but not all – have refrained from using surrogates in the war-torn country.

“Under no circumstances should anybody be going to Ukraine right now for surrogacy,” says Senator Mary Seery Kearney, who was a member of the Dáil committee on international surrogacy established to consider issues arising from overseas surrogacy.

The Department of Foreign Affairs currently strongly advises against commissioning surrogates in Ukraine, where maternity hospitals have been targeted by missile strikes and where some Ukrainian women have been forced to give birth in primitive conditions in shelters.

hannah2 Hannah McCarthy Hannah McCarthy

“I do understand that people have embryos in Ukraine and I have assisted families in giving them advice and support in bringing those embryos out of Ukraine so that they can engage in IVF or surrogacy elsewhere and clinics are facilitating that in Ukraine,” says Seery Kearney.

Global network

Other countries used for surrogacy by Irish couples include Argentina, Georgia, Greece and Mexico. Kenya has also been marketed by some commercial surrogacy agencies as an affordable and safe jurisdiction for Irish couples seeking surrogates and some have opted to use the country recently.

“Surrogacy is a booming business in Kenya now and a lot of doctors who studied obstetrics are now becoming fertility specialists,” says Enricah Dulo, a Nairobi-based lawyer who advises on surrogacy issues. Last month in Kenya, I visited one of the new fertility clinics that have opened in Nairobi and a nurse explained the surrogacy process there and the costs involved for foreign commissioning parents.

The surrogacy service costs $35,000 but does not include the cost of a round of IVF ($5,000), the implantation of an additional embryo ($2,500), the cost of the hospital stay for the surrogate (estimated at $2,000), the cost of the doctor’s delivery fee (estimated at $1,000), the cost of legal fees or documents including a birth certificate and passport and the cost of flights.

While this is an expensive procedure, it remains significantly less than the cost of surrogacy in the United States where average surrogacy costs range from $120,000 – $150,000.

The nurse at the fertility clinic in Nairobi explained to me that the clinic has a list of women who sign up directly with the clinic to be surrogates or the commissioning parents can source their own surrogates. The clinic typically implants the surrogate with 2-3 embryos in each round of IVF.

The nurse also said that the clinic arranged for the surrogate to give birth at a hospital that allows the commissioning parents to have their name listed on the birth certificate of the child, rather than the name of the surrogate.

I discussed what the clinic had told me with Dulo who explained that there are several considerations for any couples considering using Kenya for international surrogacy.

Commercial surrogacy agencies

Many Irish people may feel that they have little option but to use a surrogacy agency to connect them with a surrogate and act as an intermediary with a fertility clinic in a foreign jurisdiction.

Dulo advises any parents considering using Kenya for international surrogacy to engage a fertility clinic and lawyer directly rather than going through an agency. “Agencies are not answerable to anybody and keep everything shrouded in secrecy,” says Dulo. “I know of one agency that doesn’t even link the intending parents with the surrogate so you don’t know who is carrying your child. You don’t know if the money that you’ve paid has been paid to the surrogate, or if they’ve paid them well.”

hannah1 Enricah Dulo, a Nairobi-based lawyer Hannah McCarthy Hannah McCarthy

“A doctor is licensed; I am licensed,” says Dulo. “I have ethical standards that guide my practice and I will not do anything to jeopardise my practising certificate. If you’re dealing with a doctor, they will readily sit you down and tell you if there are complications.”

Support for surrogates

In Kenya, 16 per cent of the population lives below the poverty line which is set at just $30 per month in rural areas and $55 per month in urban areas.

In this economic environment, the remuneration or expenses that can be obtained from surrogacy can be seen by many Kenyan women as a way to improve their lives.

For women to properly consent to being surrogates they require counselling and legal support to ensure that they understand the process, the contractual arrangement and any risks involved in carrying a baby for another family. In the US, for example, surrogates typically have their own lawyers.

“Most of these girls [acting as surrogates in Kenya] are semi-illiterate,” says Dulo. “I remember speaking to one of the girls and she was complaining that she carried a child for a couple and she believed that it was her eggs that were used because she simply did not understand that what was being implanted in her had no genetic link to her,” says Dulo.

Dulo knows one surrogacy agency which requires the surrogates to live together while they are pregnant. “It’s not right that they are together,” says Dulo, who believes it creates an unhealthy living environment for the women. “If you have to put them in a house, then rent a house for each surrogate.”

Compensation for surrogates

The appropriate level of compensation for surrogates – if any – which will be permitted under the proposed Irish surrogacy remains open to debate. Senator Seery Kearney, whose own child was born via surrogacy, supports ‘compensated’ surrogacy where a “discretionary and limited goodwill payment” is permitted.

This reflects the position in Canada where “a modest proportionate payment” is permitted, which is proportionate in the country where the surrogacy is taking place.

It’s not yet clear whether the regime for international surrogacy ultimately adopted by the government will opt for a restrictive or more expansive approach in terms of recognising international surrogacy arrangements.

A restrictive approach would only allow for people who use ‘altruistic’ surrogacy abroad to be recognised as parents under the proposed surrogacy regime. A more expansive approach would recognise ‘compensated’ surrogacy but exclude more commercialised surrogacy arrangements which don’t meet certain standards.

Seery Kearney believes that the surrogacy regime eventually enacted in Ireland could be quite limited in what types of international surrogacy arrangements it recognises. “The policy document that was agreed by cabinet said that there shouldn’t be a goodwill payment but there have been discussions about that,” says the Fine Gael senator. “Because the reality is that a goodwill payment will be made but it just will happen under the radar, in my view.”

Seery Kearney believes goodwill payments should be made openly and transparently so that they can be monitored and the risk of exploitation by third parties such as commercial surrogacy agencies can be reduced.

“We need to make sure that everything is transparent, and people are encouraged to be as transparent as possible, while not cutting down the options that will disproportionately affect same-sex couples,” says Seery Kearney.

If a restrictive approach is adopted then any Irish people paying surrogates overseas will likely have to continue relying on the existing legal process in Ireland to regularise their parental and guardian status – which typically means that one of the commissioning parents lacks a legal parental relationship with the child. Seery Kearney believes that people who willfully violate the proposed surrogacy regime and use surrogacy arrangements that do not comply with the standards set out in the draft bill should face criminal sanctions.

“If somebody goes to Kenya or somewhere else and enters into commercial and potentially exploitative surrogacy, that child will be an Irish child and entitled to Irish citizenship. The child should come home and there should be an option for a parental order or something akin to adoption,” says Seery Kearney “but there should be criminal proceedings against parents who willfully break the law.”

Risks to surrogate’s health from multiple pregnancies

In Kenya, clinics routinely implant multiple embryos in a surrogate during an IVF cycle to increase the chances of successful implantation but this simultaneously increases the chances of twins and triplets.

When a surrogate carries multiple pregnancies there is an increased risk of complications. In countries with adequately funded healthcare systems, public maternity hospitals will typically treat women with complicated pregnancies and the costs may be covered through the public health system.

While Kenya is regarded as having one of the better healthcare systems in Africa, it lacks many of the resources and services of EU healthcare systems. The maternal death rate in Kenya remains high at 362 deaths per 100,000 live births. In contrast, Ireland’s maternal mortality rate is 6.3 deaths per 100,000 live births.

Dulo advises commissioning parents that any pregnancy or birth complications in Kenya mean that they will likely have to pay more money than they had planned for, especially if there are multiple pregnancies and the babies are born prematurely. “If triplets or twins are born premature, they have to go into the neonatal unit and the surrogate has to be in care for a time before she is released,” says Dulo.

Some surrogacy agreements include abortion clauses which provide that if the foetus has an abnormality or if there are multiple pregnancies, one or more of the pregnancies could be terminated if the commissioning parents wanted. This type of contractual provision has been criticised for violating a woman’s right to bodily autonomy and Dulo says that in Kenya an abortion would not be permitted unless there was a medical reason.

When should parental rights be transferred?

Under both Kenyan and Irish law, the birth mother is currently recognised as the legal mother. “Once the baby is born [in Kenya], the intended parents go to court, they hire an advocate, they go to court and ask for the transfer of parental rights,” says Dulo.

Some surrogacy agencies and fertility clinics in Kenya bypass this process by arranging for the commissioning parents’ names to be entered straight into the surrogate baby’s birth certificate when they are born.

This practice is based on controversial guidance from the Kenyan attorney general, rather than legislation passed by the Kenyan parliament. In summary, the Kenyan attorney general’s guidance provided that where there’s a surrogacy agreement and no dispute between the surrogate and the commissioning parents, the child can be registered in the name of the commissioning parents on the birth certificate.

Dulo disagrees with the Kenyan attorney general’s guidance and says the practice is dishonest and makes children vulnerable to trafficking. She notes that Kenya is currently a Tier 2 country on the US State Department’s annual human trafficking watchlist which means that it’s not fully compliant with the minimum standards for eliminating severe forms of human trafficking.

“You don’t know the reason why this person is trying to get the child by directly registering the name of the birth certificate because there’s no follow-up,” the Kenyan lawyer continues.

“If someone is genuine about the relationship that they want to have with this child – even though it’s costly, and it’s time-consuming – I think it’s proper to do what is right by the law because we have children in Kenya who are involved in human trafficking.”

“Women, who because of poverty, or whatever status that they are in, will be lied to, or they may be coerced into giving their children to someone else,” says Dulo. “Human trafficking is one of the top illegal trades after drugs and can involve organ harvesting…So I don’t agree with that [(commissioning parents' names being entered into the birth certificate)] and I know that the agencies are doing it but I don’t agree with that as a lawyer.”

Seery Kearney says that international best practice provides that surrogates should provide their consent to transfer their parents’ rights after birth. The surrogacy regime under discussion in the Dáil would provide that a surrogate has seven days after the child is born to provide their consent.

Under the current Irish legislation, regardless of whether the Irish commissioning parents’ names are on the birth certificate, they will not automatically be deemed the child’s parents under Irish law. They must return to Ireland and establish a legal relationship under the pre-existing provisions of Irish family law.

These provisions allow the genetic father to establish his parental rights by going to court and obtaining a declaration of parentage that states that he’s the father and then he can apply for a guardianship order. The second commissioning parent then has to wait two years and then they can apply to be a guardian of the child under the Children Family and Relationships Act but the guardianship will terminate when the child turns 18.

The child’s relationship with a surrogate

Families have taken differing approaches regarding the extent to which they remain in contact with surrogates after birth. Maintaining contact with overseas surrogates is typically easier where the surrogate speaks English but translation apps have made it easier to communicate with surrogates in jurisdictions like Ukraine.

Seery Kearney believes that contact after birth should be “completely at the discretion of the parties involved – both the intended parents and the surrogate.” The senator says: “I think that all intended parents go into surrogacy with a view of holding the surrogate’s position in great respect and holding that respect for the surrogate post-birth, but I don’t believe that we should be in a situation of guidelines – it’s a very different process to adoption.”

“As a practitioner, I will leave it to the parent to decide if they want to maintain contact with the surrogate,” says Dulo. “but I don’t advocate for it because the surrogate is used only for gestational purposes. They don’t give their eggs; they have no genetic link.”

“From the time she carried the child, the surrogate went through counselling and there was a clinical report that was issued which outlined that she knew that she was carrying this child but that this was not a child that she was going to forge a relationship with after the birth.”

Andrea Mulligan, a practising barrister and Assistant Professor of Medical Law and Ethics at Trinity College, Dublin believes it’s “very important to recognise the role of the surrogate as an important person in that child’s life” and dislikes “any arrangement whereby you try and delete the surrogate and pretend she’s not important.”

“I would have a huge difficulty with any arrangement whereby you try and pretend that a woman is just a vessel for carrying your child.”

Hannah McCarthy is a journalist based in Beirut.  

VOICES

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