Baby Ava: An Irish Surrogacy Story

Posted on March 15, 2013

Caroline O’Flaherty can’t remember a time when she didn’t dream of being a mother. Even when all the odds were stacked against her, in the face of cervical cancer, radical surgery, failures of fertility treatment and adoption, Caroline never gave up hope. Her dream finally came true in April 2011 when her daughter, Ava, was born in India. However, that was only the start of a long, legal battle to bring Ava home to Ireland. Although Caroline and her husband, Niall, are Ava’s biological parents, it was a surrogate that carried and gave birth to their daughter.

Ava at fifteen months

While surrogacy is not illegal in Ireland, there is no legislative framework governing it and the birth mother is regarded as the legal mother. In 2005, the Commission on Assisted Human Reproduction recommended that the commissioning parents should be considered the legal parents in surrogacy arrangements. The Commission also found that surrogate mothers should be entitled to receive reimbursement of expenses for the pregnancy and that the child should also be entitled to find out the identity of the surrogate mother when they reach maturity. However, since then successive governments have avoided legislating for surrogacy, leaving many children in a legal limbo, unable to obtain passports.

It is estimated that there are several hundred children in Ireland who were born abroad to a surrogate mother. The parenting website has several recent discussions about surrogacy with many prospective parents looking for information. Most of the questions are about the legal side of things as many couples have spent weeks and even months trying to get their babies home to Ireland.

Due to the increasing amount of Irish couples entering into surrogacy arrangements abroad, the Minister for Justice, Alan Shatter, issued a guidance document earlier this year. This simply outlines the existing situation regarding surrogacy under Irish law.
Speaking at a recent UCC Law Society conference on surrogacy, senior law lecturer, Deirdre Madden, said that surrogacy issues could not be adequately regulated through existing legislation. “The international conflicts of law leave children born abroad through surrogacy extremely vulnerable. They are potentially abandoned, parentless, and stateless in a foreign country or living in Ireland with uncertain legal status.” Madden says that, according to media reports, there are currently about 30 Irish couples in this situation.
And that is the situation in which Caroline found herself when she finally got to hold the child she had fought so long and hard to have.

“Will I be able to have a baby?” In Baby Ava, the book she wrote with her husband, Niall, Caroline relays the first words she spoke when she came around after her surgery for cervical cancer. In 1998, at the age of 27, she was only the second person in Ireland to have a radical trachelectomy. A full hysterectomy was the usual treatment for cervical cancer but this experimental procedure would remove the cervix and put a permanent stitch in place. “This way, it would leave me a chance to get pregnant and have a baby”, says Caroline. “But I knew if I even got pregnant, it would mean complete bed rest for the entire pregnancy and it would be very hard for me to carry the baby.”

After many years of trying, a pregnancy did not happen for Caroline and Niall and they found themselves at the Hari Unit, the fertility clinic at the Rotunda hospital. The couple underwent a series of tests and three months of scans and fertility drugs without success. At that stage Caroline’s doctor recommended IVF. However, given her history, Caroline found the constant monitoring and medical treatment very difficult. “Everything related back to the cancer and it was like reliving the whole thing over and over again.”

Caroline’s doctor also advised her that, even if she did become pregnant, she would have a 90pc chance of miscarriage. “These were sobering words indeed”, she says. The couple decided not to try IVF but Caroline couldn’t give up on her dream to be a mother.

“Being childless hurt like no pain I ever had”, she says. “For people who haven’t been through it, they don’t realise how much hurt and grief it causes.” Caroline likens infertility to a bereavement but says that there is never any closure. “Every month, I was plunged into grief when my period arrived. Empty arms and a broken heart once again”.

Caroline and Niall decided to pursue adoption and spent five long years on the HSE waiting list. When they finally got the opportunity to be assessed, they found the process bureaucratic, intrusive and unwilling to adapt to their needs. In fact, Caroline is scathing in her criticism of how the HSE treats prospective adoptive parents. “I could not take any more as I felt our dignity and self-respect were being eroded at every opportunity”, she says.

The story of baby Ava began just a few weeks after the couple decided to abandon their adoption course. Caroline watched a TG4 documentary about an Indian doctor, Dr Nayna Patel, who ran a fertility clinic in Anand in northern India. The clinic has offered surrogacy services since the practice was legalised in India in 2003. “I remember lying in bed as the programme went on and suddenly this feeling overcame me – here I was in Ireland watching a programme about surrogacy in India and I knew in my heart and soul that this was for me”, says Caroline.

Caroline emailed Dr Patel that same night and received a reply a few days later: “Yes, we can help”. After months of research and consultation with her Indian sister-in-law, Bina, Caroline and Niall were satisfied with Dr Patel’s clinic and, in particular, that their surrogate would be well looked-after. In August 2010, they travelled to India to start the surrogacy process. The couple met their surrogate, Nita, a woman who had two children and had already had a successful surrogacy. Everything went to plan at the clinic and two weeks after they returned home, they got the fantastic news that their baby was on the way.

Six weeks before the baby was due, Caroline returned to India, while Niall stayed at home to organise the passport. Both Caroline and Niall had called the passport office in advance to confirm what was needed, pointing out that their baby would be born in India. Caroline had also called the Minister for Children, Frances Fitzgerald, who “promised me the sun, the moon and the stars”. She told Caroline to phone or email her and she would make sure she got home. “She told me ‘No Irish child will be stuck in India'”, says Caroline.

As soon as Ava was born, a month prematurely, Caroline organised a birth certificate (which stated Caroline and Niall were the parents) and couriered it to Niall along with the relevant paperwork. The passport application was declined by the Passport Office in Dublin due to the Indian birth certificate. Caroline emailed the Minister for Children. “I said, look, I’ve just had a baby girl and I’m really going to need your help. I never, ever heard back from her.”

Ava finally leaving the neonatal unit but still no Daddy or passport in sight!

Caroline then contacted the Irish Passport office in India. “They were very nice to me but they said that they were under strict instructions not to issue me with any travel documents.” In the meantime, Niall was working with a solicitor and a barrister in Dublin to try and get the passport issued. “I was well looked after in India”, says Caroline, “but you’re waking up every day and thinking, am I ever going to get home. There was a time when I thought that we weren’t going to get home at all.”

There was also the danger that Caroline’s visa would expire and she would have to leave Ava behind. “I would have had to have been deported as there was no way I was leaving India without Ava”, she says. A week after Ava’s birth, Osama bin Laden was killed in Pakistan, bringing great uncertainty and threats of terrorism to the region. Caroline called the Irish consulate who said there was nothing they could do.

Caroline explains that the Indian people were a huge support to her but they couldn’t understand why she couldn’t go home. “In India, surrogacy is regulated and everything is done by the book, so even my doctor was saying, what sort of country do you live in?”

Finally, a month after Ava was born, a judge ruled that a passport be issued. The following week, Niall travelled to India with the passport to bring his wife and daughter home. They hope to bring Ava back to India as soon as she is old enough. “I always say, I will not forget how good people were to me in India”, says Caroline, “and without a shadow of a doubt, I will be back.”

Caroline and Ava as the family finally begins the long journey home

Caroline and Niall decided to write their book to offer hope and help to other couples pursuing surrogacy. Caroline says, “Even if it helps one other couple, I’m happy.”

Niall and Ava on a family holiday in 2012

Baby Ava, An Irish Surrogacy Story‘, by Caroline and Niall O’Flaherty is out now, published by Liberties Press, €14.99.

By Fiona McPhillips. First published in the Evening Herald, 3 January 2013.

What Others Are Saying

  1. mary o'connor May 10, 2013 at 12:20 pm

    hi Caroline,
    I have followed your case with interest. I am researching the surrogacy area for my Ph D.
    Have you a citation for the High Court case or has the judgment been piblished on the courts service website ? I have been checking every day.
    Good luck and best wishes to Ava.
    Mary O’Connor

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