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‘How can I move home when Irish law does not recognise I am my son’s father?’

Parents who have had children by surrogacy are put off returning because of a legal limbo

Jay O’Callaghan (right) with his husband, Aaron O’Bryan, and their son, Jake, in Toronto.

After tens of thousands of dollars spent on IVF over three years, Jay O’Callaghan and his husband, Aaron O’Bryan, became a family in 2017 when their son, Jake, was born through surrogacy in Toronto, where the couple have lived for seven years.

On Jake’s Canadian birth certificate, both O’Callaghan and O’Bryan are listed as his parents, but under current Irish family law, neither has any legal rights over their son.

In Ireland, the surrogate mother and her husband would be considered Jake’s legal parents, even though she has no biological connection to Jake – a donor egg was used – and relinquished all rights.

What started as a simple passport application has turned into a court battle with the State

When recently applying for an Irish passport for Jake, the couple were told they would need to apply for a declaration of parentage, which involves appearing before an Irish court with DNA tests to prove one of them is the biological father. O’Callaghan estimates the legal costs of such an application could exceed €10,000.

“What started as a simple passport application has turned into a court battle with the State, which requires us to provide DNA testing to prove this little boy is our son,” he says. “Even when court approves our case, his other daddy will still be left with no legal rights, as he is not the biological father.

Jay O’Callaghan with his husband, Aaron O’Bryan, and their son, Jake, in Toronto.

“How can we as a family even consider moving back to Ireland with the current law in place? Canadian law recognises both of us as our son’s parents, but the thought of moving to a country, our home country, that leaves us in the dark with no parental rights is nothing but barbaric.”

Legal limbo

Prior to the same-sex marriage referendum in 2015, the Children and Family Relationships Bill passed through the Oireachtas, amending Irish family law to extend parental rights to “non-traditional” families. But sections two and three, which deal with donor-assisted reproduction, have not yet been enacted, leaving parents and their children in legal limbo. The difficulties apply equally to same-sex and heterosexual couples.

Facing mounting pressure, Minister for Health Simon Harris told the Dáil last week that Cabinet approval had been granted to draft new legislation to correct a technical issue which was causing the delay, with a view to commencing the remaining sections of the Act in the autumn, which he said “will be a welcome step for lots of families”.

But the legislation as it currently stands deals only with donor-assisted reproduction carried out at a clinic. The Act does not change the basic rule that the birth mother is the legal mother of a child, even if they have no biological connection, in the case of surrogacy. Couples such as O’Callaghan and O’Bryan who have used a surrogate, or women who use a sperm donor known to them rather than a reproduction clinic, will not be covered.

Sperm donor

Stephanie Brown and her wife, Bex, conceived their daughter using a known sperm donor and artificial insemination at home in 2016.

“At the time our daughter was conceived, this was part of the proposed Bill, but this was later taken out. So if the Bill goes ahead as it stands, our daughter will not be recognised,” she says.

Stephanie Brown with her wife, Bex, and their daughter Ava.

The couple have a contract in place with the donor, in which he relinquished all parental rights to the child. When the child is 18 she will be free to contact him if she wishes. But Brown is Ava’s only legal parent.

Under part four of the Children and Family Relationships Act (CFRA), introduced in January 2016, a woman can apply for guardianship of a child if she is married or in a civil partnership with the biological parent of the child, or cohabiting for more than three years, and have shared parental responsibility for the child’s day-to-day care for at least two years. Brown’s wife will be eligible when Ava turns two.

“But currently, my wife has no legal rights, to sign medical consent, to sign anything for school. For any reason I wasn’t available, it would go to my mother to sign.”

While applying for an Irish passport for their daughter recently, Brown had to get an affidavit to say she was her only parent. “It was horrible. She has two parents, just not from a legal perspective,” she says.

Inclusive law

Both are originally from England, but have been living together in Roscommon for eight years. In the UK if a couple is in a civil partnership or married when a child is conceived, they are automatically considered the child’s parents, regardless of gender. Brown is advocating for a similarly inclusive law here.

The law needs to be more inclusive, suitable for more families than just lesbian couples who use an Irish clinic

“That’s the case for heterosexual couples; it is presumed the husband is the child’s biological father. A heterosexual couple could use a sperm donor and no one would ever know. The law needs to be more inclusive, suitable for more families than just lesbian couples who use an Irish clinic.”

She says if the Bill is enacted as is, the family will be moving back to Portsmouth in England, where her wife is from.

“Over there, it is much easier to do second-parent adoption, which would be another option for us. Here, the donor would have to be present and waive his rights through a court,” Brown explains.

“We both love Ireland. I have been here for so long, and we want to raise our child here. We think it is a wonderful place to grow up. But my wife needs rights over our child.”

Proposed legislation

Having also used a known donor to conceive their children, Angela Tuite and her wife, Caroline, have similar concerns about the proposed legislation. They currently live in Scotland with their three-year-old daughter and four-month-old son. Under UK law, both are on the children’s birth certificates and recognised as their parents, with all the rights and responsibilities that go with that role.

Angela Tuite (right) with her wife, Caroline, daughter Caitlin and son Tiernan, on the shores of Loch Lomond in Scotland.

The couple have been planning to move back to Co Meath since the same-sex marriage referendum passed in 2015, but they stayed put to keep their options open about conceiving their second child. They are now ready to move home, in the hope that the CFRA will be amended to include more family types.

“The current CFRA does not go far enough. It’s exclusive, elitist and unequal. It also forces same-sex couples to use expensive and unnecessary treatments to conceive, which I believe can come with increased risk,”Tuite says.

“We don’t know what will happen when we return. Once the CFRA is implemented, will the protection provided to us over here be honoured, or will we lose our rights? It’s scary to think that a move to be closer to our extended family might significantly limit our rights as our family of four.”

Moving to the Republic

Terry and William live in New Jersey with their three-year-old twins, and are expecting another baby next month. Although they are originally from Northern Ireland and England, the couple are hoping to move back to the Republic.

“I would like to live in the North but although the general population has become more liberal, the DUP has blocked gay marriage a number of times and for all the talk of softening relationships with the gay community, there is a long road ahead,” says Terry. “The South is a good compromise.”

Their twins were born in Colorado in 2014 with a known egg donor and a surrogate. As a result of a pre-court order executed by the surrogate, William – their biological father – was named as the only parent on their birth certificates. Terry could have been added to the birth cert too, but decided instead to adopt the children.

“As far as the US is concerned, William and I are the only parents for Abigail and Oliver, but the legal situation in Ireland and the UK is very different,” Terry says.

“Both would consider the surrogate to be the mother of our twins even though she has no biological connection to them. The UK would recognise my adoption of them but Ireland has not yet said it would do so.”

The couple is in discussion with the Adoption Authority of Ireland, which has never recognised an adoption arising out of surrogacy, with a hearing due later this month.

In the UK, the couple could apply for a parental order to have their parentage recognised, but Ireland doesn’t have an equivalent process.

“We’d be in legal limbo,” Terry says. “At any stage a hospital or school could question our parentage and that would be a nightmare. I love our home and I’d love to be able to return there and have all the same parental rights and legal rights over pensions etc” – which would be an issue if they returned to Northern Ireland. “There is a lot more to addressing the legal hurdles same-sex couples face in Ireland than a gay marriage referendum Yes vote.”