THE LAW SAYS I’M NOT THEIR MOTHER
After falling in love later in life, Seán and Fiona tried IVF and adoption before turning to an surrogate in India who gave them two beautiful children. But their legal battle is only beginning...
GOLLY, Golly,’ giggles three-year-old Ruby, her bare feet crossed up on the kitchen table, as she fidgets to get comfortable on her mammy Fiona’s lap. Her brown eyes follow Peppa Pig on her Kindle, while Golly – Ruby’s name for her daddy Seán – plays Dinosaurs with her twin brother Donal, sitting up on Seán Malone’s lap.
Love glistens bright in the eyes of Seán and his partner Fiona Whyte and a happier family scene you couldn’t wish to find.
On the face of it, there’s nothing too eyebrow-raising about the Malones, other than Fiona, who is 55 and Seán, 56, are much older than your average parents of toddlers.
And with their dark skin, eyes and olive skin, the children are clearly bi-racial. Strangers meeting the Malones out with the twins around their hometown of Milltown Malbay in west Clare might assume that they were grandparents, although when Seán and Fiona arrived back from abroad with the twins at the end of 2013, neighbours assumed that the children had been adopted – and the Malones were happy to leave it at that.
But the truth is that behind this seemingly ordinary family is a most extraordinary story. Look closer at the twins and there is a definite look of Seán about them. That is because Seán is the twins’ biological father.
Fiona, however, has no genetic connection to her twins. But last month at the Family Law Court in Ennis, she inched closer to being recognised as such, when a judge made her a legal guardian of Ruby and Donal, who were born through a surrogate in India.
The twins were born thanks to an anonymous Indian egg donor and Shobha Dinesh Pandey, the woman who carried them for nine months.
Using Seán’s sperm and the donor’s eggs, Ruby and Donal were created at an Indian clinic and implanted into Shobha’s womb.
After the babies were born, she handed them over to Seán and Fiona.
At eight weeks old, Ruby and Donal came home to Milltown Malbay, on the final leg of an epic journey, which saw Fiona and Seán traverse thousands of miles and uncharted legal terrain in order to realise their dreams of starting a family together.
Their journey was so fraught because there is no Irish legislation to cover surrogacy, prompting Fiona and Seán to go public with their story in a bid to urge the Government to act so that other families don’t have to endure similar suffering.
If anyone had told Seán and Fiona 10 years ago what the future had in store, they wouldn’t have believed it. Although Seán and Fiona grew up only a few doors away from one another, they only got to know one another after Fiona’s marriage had broken up and she started spending more time in her home town, rather than Dublin, where she had lived in Castleknock, worked as a nurse and raised her two sons, Diarmáid and Rián.
Both divorced and in their late 40s, neither Seán or Fiona expected to find love again.
But Seán, who has one son, Tomás, 22, who is autistic, loved to see Fiona dropping into the bar he ran in the town and before they knew it, they were head over heels in love.
Seán, who plays mandolin in a band, Tonto Murphy and is deeply involved in the GAA, smiles: ‘Life has a way of shuffling the cards and what switched me on to the possibilities of life was meeting Fiona.
‘We were drifting along and the next thing, at our age, this is happening, the most wonderful craic of our lives – we were falling in love major league and putting meat on the bones of what that means.
‘Before Fiona, I’d a purpose in work but not a purpose in living. Things went up and up with Fiona and it was nothing but possibilities and children were part of that.’
Seán had always wanted a larger family.
Fiona explains: ‘It developed into “what if?”’ Despite nearing 50 at the time, ‘I didn’t feel having more children was a mad thing. I felt it would cement our relationship.
‘We felt we were given a second chance and we grasped it with both hands and it took off.’
Seán scoffs: ‘I’m 56 but in my head I’m 22 or 23,’ while Fiona smiles: ‘We’ve the energy of 23.’
The couple initially tried to conceive naturally. In May 2009, they had their first appointment at a fertility clinic, where the doctor told Fiona: ‘Your eggs are too old’.
Because Fiona was in her late forties, IVF wasn’t open to her in Ireland. They decided to go to Barcelona, get donor eggs, use Seán’s semen to fertilise them and transfer the embryos to Fiona.
In mid-2010, they had their first IVF cycle and Fiona fell pregnant. But their euphoria turned to devastation three months later when Fiona suffered a miscarriage.
They tried four more IVF cycles, at a cost of around €40,000, but Fiona never fell pregnant again.
During this time, the couple also started exploring adoption but gave up after two years, frustrated and no closer to having a baby. They opted for surrogacy, despite it not being legislated for in Ireland and settled on India, a major surrogacy destination because of its low costs and relaxed eligibility criteria. But the booming industry is not without controversy. Impoverished women rent out their wombs to rich foreigners as a way of escaping the grinding poverty. The Malones chose an anonymous egg donor from profiles posted to them, whose eggs would be harvested and fertilised with Seán’s sperm before being implanted into a surrogate mother. Out of the thousands of IVF and surrogacy services operating in India, Seán and Fiona decided on the reputable and regulated Corion clinic in Mumbai. Costs would tot up to almost €20,000, a sum that would rise if the surrogate carried twins. Hospital and delivery care of the surrogate mother would cost €1,500, with costs rising with extra neo-natal care. Of the expected €30,000 outlay, the surrogate would receive €5,000.
Around this time, a film company got in touch with Seán and Fiona, asking if they could film their journey for RTÉ. After much deliberation, they agreed, with the aim of helping other struggling couples.
At the end of January 2013, Seán and Fiona flew to Mumbai and on to the Corion Clinic to choose their surrogate. They chose Shobha from a line-up of six women, based on how physically prepared doctors believed Shobha was to receive an embryo.
Shobha was a poor, married mother of two sons. She didn’t speak English but Fiona and Seán conversed with her through a doctor.
‘Shobha will never realise the service she bestowed on us,’ says Seán emotionally.
Seán and Fiona do not consider the practice of impoverished women ‘womb-letting’ to be exploitation.
‘Shobha entered into the contract for the money, but she made the conscious decision with her family,’ says Fiona. ‘We asked her what the money meant and she said a home and her two sons’ education. She is in a better place now and the family has a better life.’
Seán continues: ‘Shobha and her husband and family came out of a ghetto colony with no hope for their children’s future or education, but this opportunity was life changing, possibly as life changing as what she’s given us.’
Two days later, they were called back into the clinic and told they had six viable pre-embryos. The maximum the clinic allowed to be transferred was three, but if a triple pregnancy occurred, they were told a ‘reduction’ of one was clinic policy, due to the risks.
‘We’d had five failed IVF attempts, each with two pre-embryos,’ explains Fiona. ‘If Shobha hadn’t got pregnant, we’d have had to walk away and it would have been the end of the road for us. This was our last chance. We never imagined we’d get three viable pregnancies.’
‘We were drifting along and the next thing we were falling in love’ ‘Before Fiona, I had a purpose in work but not a purpose in living’
Three weeks later, they received the news that Shobha was pregnant with triplets. The ‘foetal reduction’, or abortion, was scheduled for Shobha for April 6, 2013.
‘I always think about it – it was devastating, agonising,’ says Fiona, sadly, cuddling her daughter. ‘There will always be three.’
Fiona and Seán weren’t allowed to visit Shobha during her pregnancy but they received weekly updates and regular scans.
Meanwhile their spare room was a growing mountain of bibs, babygros, blankets and baby hats, but they kept it locked at all times.
‘Our biggest fear was someone in Ireland finding out, telling someone in authority and us being stopped from going,’ explains Fiona. ‘It was unknown waters. As far as the law was concerned, we were doing something not legal but not illegal.’
As the twins’ due date loomed, the couple told very close family and friends about their plans.
They knew that in Ireland they would not be recognised as parents and the twins would have no right to citizenship. Their only way out of India with their ‘stateless’ children was with emergency travel documents to secure exit visas.
They hired a solicitor and spent months getting their ducks in a row for the inevitable proceedings in the Irish courts: everything from surrogacy contracts, to DNA documents, to birth certs and consent forms from Shobha. DNA testing would be carried out in India and sent to a Dublin-based and Irish-approved clinic.
Once back in Ireland, Seán would apply to the Circuit Court for a declaration of parentage and guardianship under the Children’s Act 1977 and could apply for passports.
But Fiona would be non-existent in the eyes of the law, as, according to the Constitution, the woman who gives birth – Shobha – is the legal mother.
On September 21, 2013, Fiona and Seán flew to Mumbai, their return flights booked for November 1.
Shobha delivered Ruby and Donal by caesarean section on September 26 at 2.41pm. Donal, with his mop of black hair, weighed 2.3kg, while Ruby, who was as bald as her daddy, weighed 2kg.
‘Seeing the surgeon come towards us with Ruby and Donal, so tiny, in the surgeon’s hands, we couldn’t believe they were ours. It was earthshattering,’ remembers Seán.
Afterwards, although against the clinic rules, Fiona was determined to find Shobha and a few days after the birth, went to visit her and, using a nurse to translate, thanked her.
‘I brought her some photos of Clare, so she could see the twins’ home, clothes for her children and a handbag with some money.
‘I think there was some feeling there. She clutched her heart. She was feeling some emotional pain. As a mother, having carried babies, I don’t think you can carry and not feel that feeling.’
Before leaving, Fiona asked for Shobha’s address.
Once Seán and Fiona were allowed to leave the hospital with Ruby and Donal, they moved to an apartment, where they spent eight weeks bonding with their babies and dealing with the mountain of paperwork.
On whether Fiona was worried about whether she would bond with babies she had no genetic link to, she admits: ‘From the first moment I saw them, I was terrified we wouldn’t bond.’
As to whether her maternal feelings differed from having her own two boys, she says: ‘I don’t think it was very different, in that there was this incredibly powerful urge to protect, nurture and mind and care for them and the love that goes with that came on so strong.’
After much more legal wrangling and a delay past their original flight date by two weeks, as a result of visa issues, the family boarded their flight home to Shannon, where they were greeted with a rapturous reception from family and friends.
They knew they had to apply to the courts within 20 days to secure Seán’s declaration of parentage, but they delayed this because of finances.
‘We couldn’t afford it,’ says Fiona. ‘It was going to cost us €10,000. We sold the tractor to make up some of the €10,000 and our solicitor waited for her money.’
People seeing them around Milltown Malbay assumed they had adopted but the real story came out when the documentary aired a few months later.
Fiona smiles: ‘Some thought we were absolutely off our heads to go into this at this stage of our lives and told us as such. Others said, “Fair play to you.” We’ve had no negative reaction.’
Seán adds: ‘You never know what goes on in people’s lives. One GAA man half my age texted me after the documentary went out and said, “Fair play, until you walk in the shoes, you don’t know the pain.”’
Three and-a-half years on, the twins are thriving and at pre-school at a local Gaelscoil.
‘It’s getting easier,’ smiles Seán, ‘although they were great babies and sleepers.’
Fiona says: ‘Christmas was magical. My mam Mary, who is 82, loves them. They sit up beside Granny and all our lads are all about them and my ex-husband always asks after the twins.’
As for their personalities, Fiona laughs: ‘Ruby is Miss Independent and Miss Boss, tearing around but Donal’s laid back, a real ponderer.’
Seán says: ‘Life revolves around them now.’
As the twins grow older, there will be no secrets about where they come from.
‘We bought them the ‘Koala’ book at Christmas, about the koala carrying the baby and we’re already planning to bring them back to India when they’re teenagers.
‘Down the line, we’ll see how they feel about looking for Shobha and they may not want to but we’ll support them whatever.’
Seán says: ‘One day with technology they may be able to find the egg donor. If they want to, they can. I’d encourage them. It would be no betrayal. I think people need to trace their roots.’
‘We’ll educate them about their Indian heritage and customs,’ adding with a smirk: ‘But we’ll draw the line at cricket.’
There’ll be no shortage of Irish culture. The twins already have their own tin whistles, made by their uncle and godfather Donal.
‘I feel like the luckiest man – I’ve got it made now,’ says Seán, looking lovingly at his partner. ‘This is everything – family, life, partnership, I’ve got my best friend and now Ruby and Donal. I know that all together, we can face anything.’
‘Shobha is in a better place now and her family has a better life’
Seán and Fiona’s book about their journey, Without A Doubt, is out now, priced €15.99