On one of my recent travels I spent time in the VIP lounge of Vienna Airport, where I picked up a magazine whose cover page caught my attention: “TWO MEN AND A BABY – how a gay couple fulfilled its desire to have a child“.
I read the article with avid interest. Although it is a well-known fact that surrogacy motherhood, although legally prohibited in most European countries, is nowadays increasingly used by infertile couples as well as by gays and lesbians, and in some cases even by single persons, to get “their own” baby, I have so far (to my knowledge) never met someone who has actually done this. So I was wondering: what kind of people are they? How do they go about it? What makes them do this? Do they really understand what they are doing? If they do, have they no bad conscience? And, last but not least: if there is a legal ban, why is it not enforced?
The story is about a “gay” couple living in Vienna, Martin and Sebastian (although these are probably not their real names), one being Austrian, the other “from a Southern European Country where same-sex couples may marry and adopt children” (this might be Spain or France).
There can be no doubt that Martin’s and Sebastian’s desire to have a child must be sincere – otherwise they would not have spent 65.000 Euro on an “all-inclusive-program” offered by a specialized Russian law firm (is it really one, or should we not rather call it … er …a baby trading agency?) called Rosjurconsulting.
Konstantin Svitnev, the manager and owner of Rosjurconsulting, is a lawyer who prolifically writes in publications such as “Reproductive Bio Medicine Online” or the “Journal of Clinical Research and Bioethics“, thereby creating an appearance of respectability for his business.
As he says, Russia has become a hub in the trade with “surrogacy” services because it is “the only country in Europe where even single persons can become parents”. His own role is “to protect people who want to be parents against discriminations” – by which apparently he means the laws in their countries of origin. Most of his clients come from countries where surrogacy is illegal, and about half of them are same-sex couples such as Martin and Sebastian.
In Svitnev’s all-inclusive-package, success is guaranteed: “the program”, he says, “will be continued even in the case of a stillbirth”. And further: “Should the highly improbable situation occur that a surrogate mother does not want to hand over her child, our lawyers would initiate proceedings against her to get the child back. Alternatively, we would start a new program without any additional cost for our clients”.
As one also learns upon reading the article, those clients have the right to select the sex of their child. If the child suffers from any malformations or diseases, they have – according to Sebastian – a “right to abortion” (or rather, they do not need to take home the child, and the surrogate mom, if she decides not to have an abortion, will have to cope with the situation alone). It is all like in the baby Gammy case, involving a surrogate mother in Thailand and her baby, which caused outrage some weeks ago…
With regard to the legal status of motherhood, Austrian law (which would be applicable in the case of Martin and Sebastian) is very clear: the mother of a child is the woman having given birth to it. Thus, if a public authority becomes aware of a case of surrogate motherhood, it is the surrogate mother, not her client, who must be considered to be the mother. As one can read in the article, the Austrian Constitutional Court has already twice had the occasion to deal with such cases: both times, it decided contra legem in favour of what it believed to be “the child’s best interest”: rather than being sent back to the US and Ukraine (the countries where their surrogate mothers lived), the children were allowed to stay in Austria. Given that it might have been difficult to find those surrogate mothers, these decisions are understandable – but at the same time it has the obvious disadvantage of encouraging rather than dissuading wannabe “parents” to use the option of surrogacy. According to the Constitutional Court’s case-law, the passport authority is not allowed to draw into question the veracity of a birth certificate issued in another country – even if it may find it strange that an Austrian child happens to have been born in India or Ukraine, or that an avowedly “gay” man living in a registered partnership in Austria claims to be the father of a child born in Russia. “Don’t ask, don’t tell” seems to be the – somewhat hypocritical – policy. One can understand the Court’s hesitation to send a child back to a mother that never wanted it – but on the other hand, this leniency is bound to encourage those who disrespect the law.
There are many more rather astonishing details in this article on what seems to already be current practice in this new kind of “flesh for cash” business. If a “donated” egg cell is needed (because the child is for a couple in which the female partner has no egg cells of her own, or if it is for a “gay” couple or a single man), it appears to be standard procedure to use the egg-cells of another woman than the one serving as “surrogate mother”: this simply reduces the risk that the latter grows attached to the child and decides to keep it. Martin and Sebastian therefore had to select two women – one for the egg-cells, and another one for the surrogate pregnancy. There are around 200 criteria that may be used to select the egg-cell “donor”. According to Sebastian, she “must be healthy, good looking, and have a diploma – otherwise, how would we know that she has some intellect?” One also reads that in some cases the birth takes place in another country than the one in which the surrogate mother has her usual domicile – in order to make it more difficult to find her later on.
Once the child has been born, the “client” declares to recognize his fatherhood. This allows him to obtain a passport for the child and bring it to his country (in this case, Austria). Once back in Austria, the father’s same-sex “partner” can adopt the child – thanks to a recent modification of the law that was greatly facilitated to the ECtHR’s controversial decision in X. and Others v. Austria.
As it becomes apparent, this filthy business would not be possible if it were not to some extent tolerated or even encouraged by the politicians, judges, and public administrations of all countries concerned. In a country like Russia, where surrogacy is legal, such tolerance is not surprising, even though some of the practices described above might be illegal even there. But for those countries (like Austria) where surrogacy is illegal, the complacency is hard to explain. There seems to be little interest in enforcing the laws that are in place. Instead, there is a mentality in which the laws of demand and supply seem to supplant even the most elementary ethical considerations: if there is an offer (i.e., the women promoted by like Rosjurconsulting) that meets “solvable demand” (from clients such as Martin and Sebastian), who should have the right to prevent the transaction from taking place? The sacrosanct “desire to have a child”, irrespective of who expresses it (including single persons or same-sex couples who by nature could never be “parents”!!), is apparently the primary consideration: in other words, anyone who wants a child and is willing to pay for it has the right to get one. The child is transformed into a commodity with a price tag.
Some politicians or judges might be hesitant to intervene against surrogacy because they think that this would be “fighting against progress”. But where is this “progress”? The essential feature of surrogate motherhood is to pay a woman for carrying a child that you will then take away and raise as your own. This could have been done at all times, – but it wasn’t because the mere thought was considered disgusting. The only novelty consists in the fact that “biological motherhood” can be split up between the woman that “donates” the egg-cell and the woman that carries the child. But this “innovation” does not as such change the moral implications of what is being done.
Surrogacy is a modern form of slave trade, combined with prostitution. It is a very serious moral issue that is not going to be solved merely by looking the other way, or by not enforcing domestic laws against those who traven abroad with the purpose of circumventing them.
In the best of cases, surrogacy should be made the subject of an International Convention at the level of the UN or the Council of Europe. In the meantime, countries like Austria should consistently apply their bans against surrogacy also to extra-territorial situations that involve their own citizens and residents. And Russia, which recently has shown soooooo great ambitions to be a champion of marriage and family values should urgently get its act together: it is not very consistent to prohibit the adoption of Russian children by same-sex couples, but at the same time tolerate that such couples use Russian women as “egg-cell donors” or “surrogate mothers”.