Is there a connection between same-sex marriage and surrogacy? There is a lot of confusion about the marriage referendum. The Yes side says that it is a vote for equality. The No posters suggest that a Yes vote is a vote for surrogacy. The truth is that we are not being asked to vote on surrogacy, but surrogacy is not irrelevant to same-sex marriage (SSM). Under Irish law, married individuals have a constitutional right ‘to procreate’. 1 If the referendum passes, same–sex married individuals will also have this right. Our laws have yet to determine the full meaning and extent of the right to procreate, but it has been suggested that it is a right to have genetically related children. 2 For same-sex married individuals, this can only be achieved through reproductive technologies and surrogacy. Hence, the likelihood is that a ‘Yes vote’ on 22 May will have implications for reproductive technology and for surrogacy. There is a growing demand in developed nations for surrogacy. There is a dearth of statistical evidence of its use as a path to parenthood by same-sex couples in the UK, and further research is needed. It is useful, nonetheless, to look at the patchy data that does exist. In the UK, Parental Orders may be applied for by commissioning parents following birth to a surrogate. It was reported in 2014 that the number of babies registered under Parental Orders in Britain rose by 255 per cent in the previous six years. 3 The real number of children being born overseas to UK commissioning parents is believed to greatly exceed the numbers identified through Parental Order applications. Lawyers working in this area point to the “big gap between the numbers of parental orders being made (213 in 2012) and the numbers of children being born through surrogacy to UK parents (reportedly 1,000 cases per year in India alone).”4 During the month of January last year, 24 babies were registered to British parents after a surrogacy, pointing to an ever-increasing demand.5 The authors of a 2012 study noted an increase in applications for Parental Orders following changes to UK law in 2010 that allowed same-sex couples (and couples ‘in enduring family relationships’) to apply for Parental Orders. Their data suggests that same-sex couples account for some of the increase (figure for couples in ‘enduring family relationships’ are not kept). 6 1 Murray v Ireland [1991] ILRM 465. 2 The US National Academies Board on Health Sciences' Institute of Medicine's Committee on
Ethical and Social Policy held a Policy Public Workshop entitled ‘Considerations of Novel Techniques for Prevention of Maternal Transmission of Mitochondrial DNA Diseases’ in Washington DC on 31 March -1 April 2015 . In his oral submission to that committee, Professor John Robertson defined procreative liberty as "the right, the presumptive negative right against negative interference to have or not have genetically related offspring." (unpublished text, running text from livestream of the Committee's Public Workshop captured 1 April 2015). This is a development of Robertson's previous writing and reflects a growing body of opinion. 3 http://www.independent.co.uk/news/uk/home-news/revealed-surrogate-births-hit-record-highas-couples-flock-abroad-9162834.html accessed 9 May 2015. 4 http://www.nataliegambleassociates.co.uk/blog/2014/10/03/court-unlocks-nonsensical-lawfor-surrogacy-parents-who-miss-six-month-deadline-to-secure-parental-status/ accessed 9 May 2015. 5 http://www.independent.co.uk/news/uk/home-news/revealed-surrogate-births-hit-record-highas-couples-flock-abroad-9162834.html accessed 9 May 2015. 6 Marilyn Crawshaw, Eric Blyth and Olga van den Akker, ‘The changing profile of surrogacy in the UK – Implications for national and international policy and practice’ (2012) 34(3) Journal of Social
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Because same-sex marriage is such a recent phenomenon, and is not legal in most countries, there is little research internationally on the use of surrogacy by same-sex couples. The published research tends to study small numbers of couples. That said, it has been found that that new reproductive techniques have led an increasing number of male same-sex couples to expect genetic parenthood as part of their lives.7 Advertising strategies by ‘third party reproduction providers’ (enterprises specialising in surrogacy) have been found to contribute to the desire of gay men to become parents, particularly where accompanied by information sessions and promotion through statements in the media.8 Surrogacy enables male same-sex couples to follow a heteronormative path to parenthood, to produce offspring which will be the genetic child of one of the partners and enables their parenting to start at the birth. The genetic relatedness with the child produced by surrogacy has been highlighted as the primary reason male same-sex couples choose surrogacy.9 Lesbian couples also avail of assisted reproduction to enable each woman to have a biological kinship with the resulting child – one woman provides the egg that is fertilized by donor sperm and the resulting embryo is implanted in the womb of the woman who will gestate the pregnancy. This is becoming increasingly popular as it enables both women to have a biological link to the child.10 Enterprises in this industry acknowledge that their trade ‘is driven by the acceptance of same-sex marriage around the world.’ 11 They hold regular information sessions in Ireland and make appointments for same-sex couples with their doctors.12 Their message is that same-sex couples can have genetically related children. New reproductive techniques are being developed which would enable samesex couples, or a greater number of individuals of either or both sexes in combination, to genetically parent a child in equal degree. These techniques would permit same-sex couples and individuals in polyamorous relationships to satisfy 'their legitimate interests in becoming genetic parents of their Welfare and Family Law 267-277. 7 Wendy Norton, Nicky Hudson and Lorraine Culley, ‘Gay men seeking surrogacy to achieve parenthood’ (2013) 27 Reproductive BioMedicine Online 271-279. 8 Dean A Murphy, ‘The Desire for Parenthood: Gay Men Choosing to Become Parents Through Surrogacy’ (2013) 34(8) Journal of Family Issues 1104-1124. 9 Arlene Istar Lev, ‘Gay Dads: Choosing surrogacy’ (2006) 7(1) Lesbian & Gay Psychology Review 72-76. See also Deborah Dempsey, ‘Surrogacy, gay male couples and the significance of biogenetic paternity’ (2013) 32(1) New Genetics and Society 37-53. 10 http://www.londonwomensclinic.com/london/egg_donation_from_your_partner accessed 9 May 2015. 11 http://www.thejournal.ie/surrogacy-1770735-Nov2014/ accessed 9 May 2015. 12 https://www.facebook.com/OregonReproductiveMedicineIreland accessed 9 May 2015. The principal of the British Surrogacy Centre (www.britishsurrogacycentre.com), Barrie DrewittBarlow, posted on Twitter on 2 May 2015 that he has been working with couples in Ireland for seven years. The British Surrogacy Centre ‘aims its services particularly at gay couples.’ Crawshaw and others, fn 6 above.
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children.'13 In time, these reproductive techniques and others will 'allow the genome to be distributed and shared equally, bending the temporal necessity of genetic generations to the social and cultural preferences of our times. 14 In December 2014, scientists from the University of Cambridge in the UK and the Weizmann Institute in Israel reported15 that they had ‘created primordial germ cells – cells that will go on to become egg and sperm – using human embryonic stem cells.’16 They acknowledged that this had been done previously using rodent stem cells, but observed that this ‘ is the first time this has been achieved efficiently using human stem cells.’ 17 The scientist leading the project’s Israeli team noted “It has already caused interest from gay groups because of the possibility of making egg and sperm cells from parents of the same sex,”18 These scientific advances are moving society into a new paradigm. Formerly, assisted reproduction was utilised to enable men and women with fertility problems to have children. There is no suggestion that homosexual individuals are infertile. Whether the reproductive technology industry is moving to satisfy the demands of a society that is coming to regard age and sex as no barrier to parenthood, or whether the industry is creating the demand by devising these new technologies, that fact is that same-sex couples will increasingly seek genetic parenthood, and that this will require considerable scientific input. Surrogacy and new reproductive technologies raise new and complicated ethical questions. Society should be afforded the opportunity to engage in consideration of these matters before, rather than after, the event.
Conclusion
13 César Palacios-González, John Harris and Giuseppe Testa, 'Multiplex parenting: IVG and the
generations to come' (2014) 40(11) Journal of Medical Ethics 752-8, available at http://jme.bmj.com/content/early/2014/03/07/medethics-2013-101810.full See also Robert Sparrow, 'In vitro eugenics' (2014) 40(11) Journal of Medical Ethics 725-31, available at http://jme.bmj.com/content/early/2013/02/13/medethics-2012-101200 accessed 9 May 2015. 14 ibid. 15 Naoko Irie et al, ‘SOX17 Is a Critical Specifier of Human Primordial Germ Cell Fate’ Published Online 24 December 2014, available at http://www.cell.com/cell/abstract/S00928674%2814%2901583-9 accessed 9 May 2015. 16 University of Cambridge, ‘Egg and Sperm Race: Scientists create precursors to human egg and sperm’, http://www.cam.ac.uk/research/news/egg-and-sperm-race-scientists-create-precursors-tohuman-egg-and-sperm accessed 9 May 2015. 17 ibid. 18Lois Rogers, ‘Cell breakthrough to bring two-dad babies’ The Sunday Times 22 February 2015 http://www.thesundaytimes.co.uk/sto/news/uk_news/Science/article1522406.ece? shareToken=5754e61bc815db859745094a64bf36ac accessed 9 May 2015.
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Under Irish law, married individuals have a constitutional right to procreate. If the proposed constitutional amendment is passed on 22 May, same-sex married individuals would also have this constitutional right. Given that surrogacy and new technologies are the only means for same-sex couples to have genetically related children, nobody can conclusively assert that samesex marriage will have nothing to do with the shape of future surrogacy laws. On the contrary, the likelihood is that it will. If there is a Yes vote on 22 May, any attempt thereafter to prohibit surrogacy or to limit access to technologies which would produce genetically related children for same-sex couples would be vulnerable to constitutional challenge.
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