Lack of legal clarity in surrogacy, court told

The parents who “commission” a child by a surrogate mother should be presumed to be the legal parents of that child, an expert on infertility told the High Court yesterday.

Dr Mary Wingfield, a consultant obstetrician and gynaecologist with the National Maternity Hospital, Holles Street, specialising in infertility, also said she was “very much in favour of surrogacy”. One of the problems in Ireland was there was no clear mechanism in law and Irish clinics tended “not to get involved because of the lack of legal clarity”, she said. The doctor, a member of the Commission on Assisted Human Reproduction, which reported seven years ago and recommended legislation in the area, said she was “very, very disappointed” the recommendations had not been followed.

“We so badly need legislation; it is tragic that couples have to end up in the High Court to resolve issues like this,” she said. “It is not right.”

Landmark case

Dr Wingfield was giving evidence in a landmark case challenging the refusal of the State to allow the genetic mother of twins born to a surrogate mother to be registered as the children’s mother on their birth certificates.

The surrogate mother is the sister of the genetic mother in the case and is not objecting to the couple’s application.

Dr Wingfield said the commission had recommended the parentage of a child born by surrogacy should be “with the commissioning couple” because that had been the intention of the parties when the surrogacy was agreed.

She also said the commission had been concerned about the exploitation of surrogate mothers. She had received correspondence from a clinic in South Africa offering the services of surrogate mothers and a supply of eggs and saying the woman would be “kept in an institution” for the duration of the pregnancy.

Altruistic reasons

The commission recommended a surrogate mother should be given expenses, but no fee should be paid; it should be undertaken for altruistic reasons.

Mr Justice Henry Abbott asked Dr Wingfield why a couple would “go to such lengths” to have a child. The doctor said it was “a natural tendency”.

“Is it even more natural if the surrogate is your sister?” Gerard Durcan SC, counsel for the genetic parents, asked.

“Yes, I think it is,” Dr Wingfield responded.

Mr Durcan began his closing submissions yesterday. He said the surrogacy in this case had been “a completely altruistic act by a sister for a sister”.

He pointed out the difficulties faced by a genetic mother not recognised as the legal mother, including that she would not be able to give permission to a hospital to carry out medical procedures on her child in an emergency situation. There were also significant implications for the twins, for example under the Succession Act, if their genetic parents died without a will.

Mr Durcan said the “blood link” between children and their parents had been well recognised in Irish case law, as had the importance of children being part of their biological family. It was a “primordial constitutional principle”, he said.

Mr Justice Abbott remarked that “blood link” was probably “an old-fashioned way of expressing genetic link”. But Mary O’Toole SC, for the State, said the term did not necessarily refer to genetics.

The case continues today.