Surrogacy: a legal vacuum by Ciara Herlihy
While the Children and Family Relationships Act 2015 introduces significant changes to Irish law in the areas of guardianship, custody, access and adoption, and regulates the area of donor assisted human reproduction for the first time, surrogacy remains unregulated, resulting in a legal vacuum which continues to cause difficulties and uncertainty for commissioning parents and children born via surrogacy arrangements.
In 2005, the Commission on Assisted Human Reproduction published a report recommending that surrogacy arrangements be permitted. They also recommended the introduction of legislation to govern these arrangements, and the establishment of a body to regulate assisted human reproduction generally.
Surrogacy was included in the original draft of the Children and Family Relationships Bill, incorporating extensive governing provisions including a ban on commercial surrogacy. However, these proposals were removed, with Minister for Justice Frances Fitzgerald noting that there were “critical issues needing to be resolved”. This removal of the proposals was strongly criticised by many, including former Minister for Justice Alan Shatter.
Surrogacy remains a controversial issue, hitting the headlines particularly during the marriage referendum in 2015. Countries across Europe have taken widely different approaches; for example, France and Italy have banned all surrogacy arrangements while the United Kingdom has banned commercial surrogacy.
Despite the lack of regulation in Ireland, there is evidence that Irish couples have children born via surrogacy arrangements both domestically and abroad, partly perhaps given that domestic adoption is almost non-existent and the numbers of inter-country adoptions have decreased over the past number of years. The Irish Independent has reported that at least 57 children have been born via surrogacy between 2008 and early 2015. This figure is based on the number of emergency travel certificates granted to commissioning parents who must apply for these before they are able to bring the child into Ireland. The requirement to apply for emergency travel certificates depends on the country in which the child is born, meaning that the number of children is likely to be much higher.
In order to support these parents and in acknowledging the fact of surrogacy, the Department of Justice issued a guidance document in 2012 in relation to overseas surrogacy arrangements called “Citizenship, Parentage, Guardianship and Travel Document Issues in Relation to Children Born as a Result of Surrogacy Arrangements Entered into Outside the State”.
MR v. An tArd- Chláraitheoir
A high profile case involving a domestic surrogacy arrangement was widely reported in 2013 and serves to reflect the current vacuous legal position on surrogacy in Ireland until legislation is introduced.
This case involved a woman who acted as a surrogate for her sister and gave birth to twins, she being known as the gestational mother. Counsel for the parents described this as a “gesture of love” for her sister who was unable to give birth. They had collectively agreed that the children would be raised and cared for by her sister, the genetic mother, who had provided the ovum, and her husband, who was also the genetic father of the twins, having provided the sperm in the fertilisation process.
There was no dispute between the parties as to who ought to be recognised as the legal parents of the twins. However, difficulties arose when the genetic parents sought to register the birth of the children, in particular to register the genetic mother as the legally recognised mother of the twins.
In the High Court, Justice Abbott observed that the surrogacy arrangement was not in fact illegal as surrogacy was not banned in Ireland. The central issue before the court was who should be registered as the mother of the twins under the Civil Registration Act 2004: the genetic mother, or the woman who had given birth to the child, the gestational mother.
The state argued that the gestational mother is the sole person capable of being recognised as the legal mother. Conversely, counsel for the parents argued that the definition of “mother” should be based on the genetic link with the child.
Ultimately the High Court made a declaration that the genetic mother should be registered as the legal mother of the twins.
The state successfully appealed this decision which was overturned by the Supreme Court in November 2014, meaning that the genetic mother could not be registered as the legal mother of the twins.
The judgment recognised that “any law on surrogacy affects the status and rights of persons, especially children: it creates complex relationships and has a deep social content” and was very critical of the government’s continued failure to legislate in the area. Chief Justice Denham urged for the gap in the law to be addressed, noting that surrogacy was “quintessentially a matter for the Oireachtas”, and not a matter for the courts in the absence of legislation.
The Supreme Court decision means that the genetic parents would only have the option to jointly adopt the twins, being the only way to allow the genetic mother to be recognised as their legal mother.
The current law would also allow the genetic mother to apply to become the legal guardian of the children along with her husband under the Children and Family Relationships Act, after she shares responsibility with him for the day-to-day care of the twins for at least two years. It is now also possible for children to have multiple guardians, meaning that the gestational mother would remain as the legally recognised mother and guardian along with her sister and her husband.
Towards the legal regulation of surrogacy arrangements
The government has committed to putting legislation in place to govern surrogacy arrangements, to include the setting up of a Regulator to maintain records of all surrogacy arrangements and assisted reproduction activities. It is envisaged that these proposals will include a ban on commercial surrogacy but will allow surrogate mothers to be reimbursed for “reasonable expenses”. Legislation may also require intending parents and surrogate mothers to attend counselling before consenting to the surrogacy arrangement. Last December, Minister for Health Leo Varadkar said that new laws on surrogacy were in the process of being drafted but were unlikely to be published until later this year.
Ireland’s Special Rapporteur on Child Protection Geoffrey Shannon has emphasised that children “should not be left in a legal limbo. A child born through surrogacy could potentially have five individuals involved: the surrogate mother, the commissioning mother, the egg donor, the commissioning father and the sperm donor”, and pointed to the issue of children born via overseas surrogacy arrangements being stateless.
Children and families will remain in legal limbo until much-needed clarity is provided in the form of a clear legislative framework to regulate surrogacy arrangements. It is essential that the rights and interests of children are at the centre of any regulatory framework.