The upcoming Assisted Human Reproduction (AHR) Bill plans to regulate a wide range of practices for the first time in Ireland including "domestic altruistic surrogacy", according to a statement from the Department of Health. This has raised a red flag among parents and surrogacy advocacy groups that the proposed Bill would not include provisions for international surrogacy or retrospective pathways to parenthood.
A report in last week's Business Post cited a proposal instead to establish a special joint Oireachtas committee to consider the "legal and ethical obstacles" to facilitating international surrogacy. The potential further delay has enraged parents and surrogacy advocacy groups who had campaigned for the Bill to include provisions on parentage rights, including retrospective parentage, for those who avail of international surrogacy. A demonstration is now planned to take place at Leinster House next Tuesday morning, as Minister for Justice Helen McEntee returns from maternity leave.
Surrogacy is the arrangement whereby a surrogate mother agrees to bear a child for another person or persons, who will become the child’s parent or parents after birth. With international surrogacy far more common here than domestic surrogacy, any delay to legislation for international surrogacy means children and parents could be left in a legally vulnerable position where the mother, or second parent, would have no legal relationship with their child.
A spokesperson for Irish Families Through Surrogacy said the group, which advocates for children born through surrogacy to have a legal relationship with both their parents, “are asking all relevant Ministers to urgently focus all efforts to ensure this legislation is drafted without any further delays”.
When asked whether international surrogacy would be included in the forthcoming legislation the Department of Health gave the following response: “Issues which arise from the undertaking of surrogacy in other jurisdictions and the assignment of retrospective parentage concern areas of law that intersect across the remit of several Government departments and require detailed examination. The Department of Health is engaging with the Department of Justice and the Department of Children, Equality, Disability, Integration and Youth in respect of these matters, including at ministerial level”.
Annette Hickey, a solicitor in surrogacy law, explains that currently the only way a child born through surrogacy can be given any protection and have one legal guardian or parent in this country, is to prove through DNA evidence that the father is the biological father of the child in question. With the father’s permission, the second parent may apply for guardianship when the child is two years old. However, “if there was a marital breakdown during the first two years, we have a situation where the mother, or second parent, has no legal relationship, is a legal stranger, to that child,” Hickey says.
The implications are far reaching, she adds. Not only does it mean that the second parent’s family – grandparents, aunts, uncles etc – have no legal relationship to the child, but “on the death of their mother or second parent, this child will not have a child/parent relationship from an inheritance tax point of view”.
Hickey also points out that guardianship is not the same as parentage. “Guardianship lasts until a child turns 18. When that child turns 18, that guardian and that child revert to being legal strangers to each other.”
“Children will continue to be born through surrogacy,” Hickey says, adding that if the Government continues to defer this legislation, these children will not have access to their genetic information. “That surely is the fundamental right of the child,” she adds.
As things stand the mother or second parent of a child born through surrogacy cannot legally consent to medical treatment for their child for the first two years of their life, until they are awarded guardianship. This even applies to routine childhood vaccinations. Author and mother of three, Rosanna Davison gave birth to twin boys Oscar and Hugo, 11 months ago. Her daughter, Sophia (23 months) was born through surrogacy.
“I find it incredibly distressing to think of what could happen if we were in a situation where Wes [her husband] became incapacitated or worse. How would we cope knowing that I had no legal say over what happens to Sophia?
“We fought a hard battle to have her, to bring her into the world, far harder than I fought to have the twins. To go through the whole egg retrieval process, the stress and trauma on your body of injecting yourself to mature your eggs enough to retrieve them, and everything we’ve been through to have her. And then to face another fight, it’s unbelievable.”
Davison also points to the gender inequality of the current situation. “Why was Wes allowed to take a DNA test immediately after the baby’s birth and be proven to be her father, yet I’m still waiting two years later to even apply to be her guardian? Why are we talking about female reproductive systems and Irish law once again? Have we not been here in the last few years?
“I’m so grateful that we do live in a world where there are women willing to carry a baby for another couple or individual and that we live in a world where medical science has made it possible. I think Ireland badly needs to catch up with advancements in embryology, methods of conception. Families obviously aren’t all created in the traditional way and it’s been like that for many years.”
Davison is concerned that her daughter does not have the same rights as her sons. “I want Sophia to grow up knowing that she is legally equal to her brothers. She still has to deal with the emotional load, and probably the shock, when we do tell her when she’s old enough to understand that I didn’t give birth to her . . . to then face legal discrimination for the fact that I didn’t give birth to her is another hurdle.
“She’s an Irish citizen, as proven by her father’s DNA test, and she needs to be given the same legal opportunities that her brothers, and every other Irish child have.”
Westlife singer, Mark Feehily, and his fiance, Cailean's, daughter Layla was born through surrogacy in the US. "I don't have any reason to believe that domestic surrogacy would have been an option for us. It's not regulated. It's not legal," he says. "I would have loved nothing more than to have done it here and to be able to attend scans.
“There’s so little knowledge surrounding surrogacy . . . but we came to be parents the same way all parents come to be parents, because we made a loving decision to create life and to enter into parenthood and to raise a child or children. The essence of what this is about is parenthood.”
Feehily is keen not to distract from the importance of what he and other parents of children born through surrogacy want to achieve. “This is not a surrogacy conversation,” he says. “This conversation is about parental, guardian legalities, the relationship between a parent and their child. My child is here right now. My child in my eyes is Irish and actually in the eyes of the law, she is Irish. If they don’t change the law they will continue to leave my child and hundreds, if not thousands, of other children around the country out.
“We are asking for nothing other than to give the real parents, of real Irish children, the legal right to protect and look after them – to be able to go to the doctor, not worried that you might get turned away in front of a waiting room full of people at the baby’s 12-month jabs.
“What the focus needs to be on here is parents and the children,” Feehily continues. “This is about one single thing – we are Layla’s parents, that’s a fact, and we just need to have that recognised. And it’s the same for every other set of parents who have come into their family via surrogacy.”