The legal quagmire that is surrogate parenting

 

Irish couples who want to have children through surrogacy are in a vulnerable position, writes FIONA McCANN

WHEN PORTUGAL’S soccer star Cristiano Ronaldo announced in the wake of his World Cup exit that he had just become a father the rumour mill went into an overdrive that had eluded his national team.

“It is with great joy and emotion that I inform I have recently become father to a baby boy,” was Ronaldo’s statement on his official Facebook site. He went on to make it immediately clear that his Russian girlfriend, a model named Irina Shayk, was not the mother. “As agreed with the baby’s mother, who prefers to have her identity kept confidential, my son will be under my exclusive guardianship. No further information will be provided on this subject and I request everyone to fully respect my right [and that of the child] to privacy.”

No such luck. Reports soon emerged that the mother in question was a surrogate, with allegations that the footballer had paid millions to ensure sole custody of the child, said to be conceived in the US. If the rumours prove to be true, Ronaldo joins a small club of famous folk who have availed of surrogacy. The actors Sarah Jessica Parker and Matthew Broderick had twins last year through a surrogate mother, while the Frasierstar Kelsey Grammer and his wife, Camille, have also had two children by a surrogate. In each of these cases the process was facilitated in the US. In Ireland it’s a much more complicated business.

According to the family-law solicitor Marion Campbell, the lack of legislation for surrogacy cases in Ireland leaves couples who opt for such a route in this country “very, very vulnerable”. “If you have a child here by surrogacy – and people are doing it, using aunts, sisters and friends – the problem is the birth mother is considered the mother and her name is on the birth certificate. And if the birth mother is married, then her husband is presumed to be the father of the child. And there are huge legal issues involved in all of that, because the presumption in law is that the non-biological mother is the legal guardian of the child.”

In other words, in surrogacy cases where the egg of the mother and the sperm of the father are implanted in the womb of a third person for the purpose of conception and carrying a child to term, “the biological parents will have no legal rights and entitlements to the child. That is the problem in this jurisdiction”.

As a result Irish couples are opting to go to the US, where the situation is regulated to the extent that both “commissioning” parents can have their name on the child’s birth certificate, and the child can be immediately issued with a US passport to facilitate its removal to Ireland.

Others are looking to the Ukraine, though problems can arise when it comes to obtaining a passport for the child.

Despite the legal quagmire, Campbell says interest in surrogacy appears to be on the rise. “I have four or five appointments coming to see me in the next six weeks, Irish couples, all about surrogacy,” she says. “Some are queries about going to the United States, but three are coming in to talk to me about having a baby by way of a surrogate carrier in this jurisdiction, and I have big concerns about that. They will have absolutely no legal protection.”

In light of the increased interest, the National Infertility Support and Information Group has set up a surrogate subgroup.

“Couples going the surrogate route would have different backgrounds,” says Helen Browne, the group’s chairwoman. “One would be because they’ve had cancer and have been on treatment. Then you would have other couples who would genetically either have no womb or a very small womb. You would have couples that would be going this route because they have had numerous unsuccessful IVF treatments and they feel that their womb cannot carry a baby. We don’t have anybody at the moment in our group who’s gay, but often gay men go the surrogacy route.”

If the Ronaldo story is true, the case – a single man choosing surrogacy to father a child at the young age of 25 – is an unusual one in itself, with similar examples hard to find in this country, where most people looking at surrogacy arrive at the decision as a couple, in many cases because they feel it may be their only option to have a child with whom they have a genetic link.

Yet if a 25-year-old Portuguese man can do it, why can’t an Irish couple? “It’s so typical of Ireland: it’s shifting the responsibility to other countries,” says Browne. “The Government has to wake up and realise that surrogacy is happening, that there are babies that have been carried through a surrogate mother in this country . . . These are Irish citizens. We have to bring in legislation.”