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'We love our babies, regardless of the law on surrogacy'

Published 04/07/2015

Sean Malone and Fiona Whyte with twins Ruby and Donal
Sean Malone and Fiona Whyte with twins Ruby and Donal

Sean Malone and Fiona Whyte returned from India with twins who were born through surrogacy. They tell Donal Lynch about the legal quagmire they face.

The dark-eyed toddlers still attract a second look. The girl has a slight look of her father about her but otherwise they don't seem to strongly resemble their parents, who might anyway be old enough to be the their grandparents. The children are walking now, and beginning to talk and everywhere they go they are tiny curiosities. Strangers tentatively introduce themselves. Just last week the family were on holidays and the question inevitably came again: "where did you get them?"

Sean Malone (55) and Fiona Whyte (53) have long since resigned themselves to the frequency of such inquiries, which are mostly good natured and supportive. Their young twins became famous last year after a television documentary, Her Body, Our Babies, which showed their epic journey to India to have two children through surrogacy. In the interim months the twins have become well known faces in the Co Clare town, where Sean owns a pub. Since the documentary was aired, he and Fiona have waged a legal battle to become recognised as the parents of their two children. The children have Indian birth certificates, with both Sean and Fiona named as their parents on the certs. Last July the couple went to court to formalise their status in relation to the children. Sean sought a declaration of parentage and guardianship. "If the court ruled in our favour that would leave Sean open to apply for passports for them," Fiona says. "That was what happened and now Sean is their legal guardian and they have their own passports."

Prior to formalising the situation in court neither Sean nor Fiona could sign any consent on behalf of the twins, instead the state was considered to be the twins' legal guardian. Despite Sean now being their guardian, the legal limbo the children find themselves in presents a number of potential complications. If they were injured in an accident or had to have a life threatening operation Fiona would be unable to sign the hospital forms giving parental consent. Sean would have to be present. "I've no legal entitlements or rights," Fiona summarises. "In the eyes of the state I am not their mother."

The law in this area is in a state of flux. Last November the Irish government won a Supreme Court appeal, with the court ruling that the genetic mother of twins born to a surrogate was not entitled to be registered as their legal mother on their birth certificates. Irish Prime Minister Enda Kenny recently said that there would be no legislation on surrogacy before the general election and the official inaction is a source of frustration to both Sean and Fiona.

"Minister Varadkar, in the wake of last years' Supreme Court ruling, said this February that he would be introducing legislation, but where that is at right at this moment nobody knows," Fiona says. She felt that the prominence that issues around surrogacy received in the run up to the gay marriage referendum were by-and-large unhelpful: "I heard (senator and vocal no campaigner in the recent same-sex marriage referendum) Ronan Mullen say that when a child born by surrogacy is taken away from its birth mother that is the last time that child will know a mother's love and I just thought, 'oh my God, that is despicable to say that'. Does that mean adoptive parents don't love their children like biological parents? We went through so much to bring Donal and Ruby into the world and to bring them home. They are our children. But the way some families are created is not as simple as others."

The couple initially tried to have a child through IVF. They were treated at a clinic in Spain and were successful on the first attempt, but Fiona miscarried. They tried four more times but each time they were unsuccessful. Adoption was not an option, assuming they wanted a baby: during the process they were informed by social workers here that due to their age they would only be eligible to get an older child, possibly a child with special needs.

They saw no other option but to go down the road of surrogacy. They briefly considered America but it would have been cost-prohibitive to do it there. In some European countries, such as the UK, you have to be domiciled in the country to undertake a surrogacy there. The Ukraine was briefly considered, but dismissed, because one of the criteria for there was that you had to be married, which they were not at that point.

In the end Sean and Fiona opted to try to find a surrogate in India, with Fiona making preliminary inquiries online and managing to speak to one person who had gone to India. The couple opted to travel to the reputable and regulated Corion Fertility Clinic in Mumbai, India, where Sean gave a sperm sample and they selected the surrogate - Shobha - whose eggs were not used.

"There was a number of Indian ladies waiting to be chosen. We asked which one was the most well-prepared medically," Fiona says of the selection process for the surrogate, Shobha, who came from a poor run-down "colony" of Mumbai. The couple chose the egg donor from a number of profiles sent to them. They never met the donor, however they were made aware through the clinic that she was 25 and, when shown the profile, Fiona saw that both her age and her hormone levels were perfect for donating eggs.

The agreement was that Shobha would make around £3,500 out of the £21,000 that Sean and Fiona paid the clinic. For many watching the documentary there was squeamishness around the economic inequities that brought Shobha to the difficult decision to carry someone else's child. "From that point of view my conscience is 100% clear as to how she was treated," Sean says. "(The money) will mean, for instance, that her children could rise above where she came from. She would be able to use the money to educate her children and buy a new and better place for her family to live. They are trapped in a lifestyle of poverty there. We were told that this was as much as she could expect to earn in 10 years."

After the twins Donal and Ruby were born, getting the children out of India was a complex process. "The Irish government and the embassy in Delhi kept moving the goalposts; they wanted something today and then something else tomorrow," Fiona recalls. "This took place between the passport office in Dublin and the Irish embassy. We were jumping through hoops and it set us back by 10 days".

The couple anxiously waited while DNA samples were sent first to Ireland, then England for testing, then the results were sent back to Ireland and from there back to India. And as they applied to the Foreign Regional Registration Office in Mumbai for their exit visas which would allow them to exit India with the children the whole city was on the brink of shutting down for a week for a Hindu festival but in the nick of time they managed to get their travel documents in order.

After all the drama and difficulty of the previous months and years the flight back to Ireland felt like the sweetest of releases for the couple. "The flight back was something I will never forget," Sean recalls. "The staff on the plane gave us a glass of champagne. And I think that was the moment we finally relaxed."

The couple say that they intend to be open and honest with Donal and Ruby as soon as is practical. And what if the children at some point wish to track down Shobha? "They won't need to track her down, we have her address," Fiona responds. "If they feel that is what they need to do we'll support them every step of the way. I did ask for her address, I made a point of that. But it's important to note that there is no genetic connection between Shobha and Donal and Ruby."

What about the energy it takes to take on two new babies in your 50s; I wonder if they have found that daunting? "Not at all, they've slept through the night from the start, and anyway we have a lot of energy," Fiona says. "We work and have a farm and get up every morning. We're tired but I don't think any more so than a younger couple."

The couple say they have had numerous couples reaching out to them since the documentary aired. The legal quagmire that the children still find themselves in needs urgent attention, Fiona says, however she also emphasises that resolving the legal situation will be merely official recognition of a family that is as real and valid as any other: "They are our babies, we brought them into this world, we're responsible for them, and we love them more than anything. That's the reality, whether the government recognises it or not."

Belfast Telegraph

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