A Co Donegal woman whose nine-year-old daughter was born through surrogacy has said a letter received from the passport office incorrectly referring to her sister, who carried her child, as the girl’s “mam” underlines the urgent need for legislation to reform the area.
Marie McPhilemy said the language used in the letter was “hurtful” and “degrading” and that, as the child’s legal guardian, she should not have been required by the passport office to bring her sister to a garda station to sign documentation.
Ms McPhilemy also said that while she and her husband John had submitted the passport application for their daughter with all the necessary documentation, including the court order showing she was a guardian, the passport office had replied by post addressing the letter only to Mr McPhilemy and making no reference to her.
“I was not even mentioned. I was totally blanked,” she said.
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Ms McPhilemy was told from the age of 15 that she would never be able to carry a child. Her older sister, Sharon, promised her then that she would carry a baby for her and in due course became her surrogate.
[ Q&A: What are the laws in this State around surrogacy?Opens in new window ]
She said the lack of regulation around surrogacy in Ireland means that under the law the woman who gives birth is regarded as the mother and the name of the surrogate mother goes on the birth certificate.
“I always knew Sharon’s name would be on the birth certificate, regardless of DNA or genetics, even though Sharon has no genetic link to Lucy whatsoever. She came from my egg and my husband’s sperm,” she said.
Following their recent application to the passport office, Mr McPhilemy got a reply saying there was an issue “as the court order submitted does not dispense with Lucy’s mother Sharon O’Shea’s consent”.
The letter stated that “we do require Mam’s consent to complete Lucy’s passport application” and a form was enclosed “for Mam to complete”.
There are no laws in Ireland to govern either domestic or international surrogacy but the Assisted Human Reproduction Bill (AHRB), which was first published in 2017, contains proposals to regulate many aspects of assisted human reproduction and domestic surrogacy.
The Government in December approved legislative proposals on international surrogacy and the recognition of past surrogacy arrangements, which are to be introduced into the Bill at committee stage in the Oireachtas.
Campaigners have appealed for the speedy enactment of this legislation, arguing that surrogate parents are in legal limbo.
Last December, High Court judge Mr Justice John Jordan said he was not convinced legislators appreciated the “true need for expedition” when it comes to introducing legislation to regularise and recognise international surrogacy.
He was hearing an action brought by Co Kilkenny couple Kathy and Brian Egan, who had asked the court to declare that the State had failed to vindicate their constitutional rights by failing to recognise Ms Egan as their biological son’s legal mother. The boy was born in 2019 to a surrogate in Ukraine. The court heard that the couple do not have “the luxury of time” because Mr Egan, who is legally recognised as their son’s father, has been receiving treatment for cancer.
Mothers of children born through surrogacy may apply for guardianship after two years but that expires when the child reaches 18, which families say can lead to a range of problems such as next of kin and inheritance issues.
“After two years of minding your own flesh and blood you are allowed to apply to the courts - with John’s permission - for guardianship of your own child. It is ridiculous”, said Ms McPhilemy.
She said after her husband received the letter last month from the passport office she called and wrote to them outlining her concerns and explaining that the wording " was so degrading to me as a woman and as Lucy’s mammy”.
She said during the telephone call a woman who was helpful had urged her to get Sharon to compete the form “as that would be the quickest way to get the passport”. The two sisters went to their local garda station together, submitted the documentation and the passport has been provided.
Ms McPhilemy said she was lucky her sister lived in the same county and was accessible to her, but believes that as a guardian she should not have had to ask her sister to sign the form.
“It was like I did not exist,” she said, adding that “anyone who goes through surrogacy, does it for medical reasons”. “It is not a lifestyle choice. I would have loved nothing more than to have a big bump on my tummy but that was never going to be”.
She said she was disappointed that the passport office had not responded to her letter outlining her concerns. She was contacted by phone the day after the Irish Times queried her case and was told the office would be replying to her letter.
A spokeswoman for the Department of Foreign Affairs said it did not comment on individual cases.
The Department of Health said it was not in a position to give a definitive timeline as to when the legislation dealing with internatonal surrogacy and “certain past surrogacy arrangements " would be brought to committee stage or when the Health (Assisted Human Reproduction) Bill would pass through the Oireachtas and be enacted.
A spokeswoman said Minister for Health Stephen Donnelly wished to reiterate his commitment to ensuring that these measures would be in place “as quickly as possible”.