Senator Rónán Mullen

 Surrogacy: an abuse of Women and Children

The Minister of Health in recent letters to concerned individuals says:

‘It should be emphasised that the key principle underpinning all legislative measures in the area of surrogacy has been to ensure the protection of all aspects of the rights, interests and welfare of the two potentially most vulnerable parties to a surrogacy arrangement, namely, the children born as a result of such an arrangement and the surrogate mothers themselves.’

Let us examine that claim.

1) We should consider the exploitation of the needs of surrogate mothers, who, in the vast majority of cases, are poor women.

The “Universal Declaration of Human Rights” states:

Article 1: “All human beings are born free and equal in dignity and rights.”

Article 4: “No one shall be held in slavery or servitude; slavery and the slave trade shall be prohibited in all their forms.”

Article 5: “No one shall be subjected to torture or to cruel, inhuman or degrading treatment or punishment.”

Human dignity and integrity can only be protected if one’s body is not subject to ownership, trade, or commodification.

Surrogate motherhood is based on the instrumentalisation and exploitation of women’s bodies and their reproductive capacities for the benefit of third parties, with no other objective than the satisfaction of their individual wishes. This undermines the very notion of human dignity and undermines it for the whole of society.

The “Slavery Convention of 26 September 1926”which was adopted by the UN in 1955  defines slavery, in Article 1, as “the status or condition of a person over whom any or all of the attributes of the right of ownership are exercised”.

In surrogacy, the “clients” acquire both, the right to take the “fruits” of the surrogacy, one or more children and a real right of use over the person of the surrogate mother once the contract is concluded, or a court decision is taken in accordance with local practice or legislation, in so far as she is made to relinquish her most fundamental rights over bodily autonomy in accordance with the requirements of  the commissioning parents and of the surrogacy industry.

Instead of legalising surrogacy we should be seeking  (as Art 2 of this Convention states) ‘to bring about, progressively and as soon as possible, the complete abolition of slavery in all its forms’.

In its Article 3, the “Convention on the Elimination of All Forms of Discrimination against Women” calls upon States  to “to ensure the full development and advancement of women, for the purpose of guaranteeing them the exercise and enjoyment of human rights and fundamental freedoms on a basis of equality with men” (Art 3)

Surrogate motherhood is a specific appropriation of women’s reproductive capacities (with associated psychological risks). It constitutes a violation of the principle of equality between women and men and reinforces and perpetuates this inequality.

The Council of Europe “Istanbul Convention”, defines the concept of violence against women in Article 3 as (b) “all acts of gender-based violence that result in, or are likely to result, physical, sexual, psychological or economic harm or suffering to women” and (d) “gender-based violence against women” shall mean violence that is directed against a woman because she is a woman or that affects women disproportionately”.

Also Article 3 of the “Charter of Fundamental Rights of the European Union”[11], states that “everyone has the right to respect for her or his  physical and mental integrity”.

Surrogacy is a form of medical violence inflicted on women, in so far as the deliberate acts, performed on the body and person of a woman, (a woman in good health and without desire for a child) necessarily cause damage to her physical integrity and may cause deterioration to her health and lead to physical and/or psychological suffering,

The  “Convention on Human Rights and Biomedicine”, the “Oviedo Convention” establishes in Article 2 that “the interests and welfare of the human being shall prevail over the sole interest of society or science

Surrogacy is contrary to the principle of the primacy of the human being as defined by the Oviedo Convention, in the sense that the use of a surrogate mother to procure a child is tantamount to subjecting a woman to the desires of others through the use of invasive medical acts and treatments that have nothing to do with health care.

The EU itself stated in 2015: “the practice of surrogacy, undermines the human dignity of the woman since her body and its reproductive functions are used as a commodity; considers that the practice of gestational surrogacy which involves reproductive exploitation and use of the human body for financial or other gain, in particular in the case of vulnerable women in developing countries, shall be prohibited and treated as a matter of urgency in human rights instruments”.

2) What about children and their best interests?

The “Convention on the Rights of the Child”, in Articles 7 and 9, “guarantees the right of the child to know his or her parents as far as possible and to be cared for by them” and that “States Parties shall ensure that the child shall not be separated from his or her parents against their will”.

The United Nations Special Rapporteur “on the sale and sexual exploitation of children, including child prostitution, child pornography and other content”, in her study on surrogacy in her 2018 progress report, acknowledged that (a 42)” surrogacy arrangements constitute sale of children whenever the surrogate mother or a third party receives “remuneration or any other consideration” in exchange for transferring the child. There are three elements in the definition of sale of children: (a) “remuneration or any other consideration” (payment); (b) transfer of a child (transfer); and (c) the exchange of “(a)” for “(b)” (payment for transfer)”.

The Health (Assisted Human Reproduction) Bill 2022 can be accessed here :