It is estimated that there are several hundred children living in Ireland born to surrogate mothers whose legal status is uncertain.
Surrogacy can take place in a number of ways –
- Using the commissioning couple’s gametes
- Using the commissioning mother’s ova and donor sperm
- Using the surrogate’s ova and the commissioning father’s sperm
- Using the surrogate’s ova and donor sperm
- Using donor ova and the commissioning father’s sperm
- Using donor ova and donor sperm/donor embryo.
Current status in Ireland
At present in this jurisdiction there is no legislation in place to cover the legal issues arising from surrogacy. The most common question is who the legal parents of a child born from surrogacy are. Traditionally under Irish Law, the birth mother of a child born through surrogacy was the legal mother and the birth certificate of the infant reflected same. This led to a legal limbo for children. If the surrogate mother was married, then her husband was considered the legal father of the child and was registered as the father on the birth certificate. If the surrogate mother was single, her name alone appeared on the birth certificate. The natural father had no automatic rights of guardianship over the child. If the putative father sought a declaration of parentage, DNA evidence was required from an independent, reliable source. Once the declaration of parentage was granted the father could then proceed to apply for guardianship of the child.
The Commission on Assisted Human Reproduction was established by the last government to examine the area of AHR in Ireland and it produced a Report on same in 2005. The Commission made a number of recommendations including that a child born through surrogacy should be presumed to be that of the commissioning couple. The Commission also recommended the establishment of a Regulatory body for AHR. The recommendations made by the Commission have not been yet been incorporated into Irish Law.
Official guidelines were published by the minister for Justice, Equality and Defense in February 2013 to advise couples on citizenship, guardianship, parentage and travel document issues in relation to children born as a result of surrogacy arrangements entered into outside the State. The stated purpose of the document was to provide information to prospective commissioning parents on the steps necessary to ensure that a child born abroad through a surrogacy arrangement may enter and reside in the State and to secure the best interests of the child. This was the first time any office guidance was offered in the area of surrogacy in Ireland.
Recent High Court case
A recent High Court judgment on the parentage of twins, MR and DR, has brought the issue of surrogacy into the spotlight and has opened up the debate on the legal and ethical issues surrounding this unregulated area.
MR & DR –v– An tArd Chlaraitheoir, Ireland and the Attorney General
The central legal issue to be addressed in this case was who, in law, is entitled to be treated as the parents of the twins and to carry out the duties and to exercise the functions which follow from that status. In particular, who, in law, is to be treated as the mother of the twins. An application was brought by the genetic parents to have themselves recognised in law as the parents of the twins.
The case came before Mr Justice Abbott and he gave judgment on the 5th March 2013.
The facts of the case are that the genetic parents are OR and CR, a married couple. The genetic father in these circumstance is the man who provided the sperm and the genetic mother is the woman who provided the ovum used in the fertilisation process. L is the birth mother. CR was unable to have children and her sister, the notice party, L, volunteered to act as a surrogate for her. The ovum of CR was fertilised by the sperm of OR. This process occurred by in-vitro fertilisation and the fertilised egg was implanted in L. The pregnancy was successful and L gave birth to twins, MR and DR. L’s ex husband provided confirmation that he was not the father and so L was registered as the mother of the twins and OR registered as the father. A letter was sent to the Superintendent Registrar for Dublin seeking to have the registration corrected to reflect CR as the mother. This was accompanied by genetic evidence proving that CR was the genetic mother of the twins and enclosed a letter from the IVF Clinic describing what had transpired. The Superintendent Registrar sought legal advise and relied on the maxim of mater semper certa est, the mother is always certain, in refusing to alter the register. He said that he could not see any grounds on which he could depart from that principle despite the DNA provided to him and the fact that he accepted that L was not the mother of the twins.
In making his judgment in favour of the Applicants, Mr Justice Abbott indicated that the maxim of mater semper certa est, was a part of a series of maxims coming from Roman Law. He said that that maxim achieved acceptance by reason of the fact that before IVF the mother of the baby was determined at birth and the maxim expressed the facts of the situation. It was based on incontrovertible facts and so became an irrebuttable presumption in Court proceedings. Mr Justice Abbott said that prior to surrogacy arrangements the possibility of a rebuttal of the maxim of mater semper certa est simply did not arise.
Mr Justice Abbott held that to achieve fairness and constitutional and natural justice for both the paternal and maternal genetic parents, the feasible inquiry in relation to maternity ought to be made on a genetic basis and on being proven, the genetic mother should be registered as mother under the Civil Registration Act 2004.
This ruling is considered a landmark judgment in circumstances where no legislation currently applies. It may be worth noting however that the circumstances of this particular case refer to an instance where the ovum and the sperm were provided by the applicant couple which would not be the case in scenarios (2) – (6) above. It is also of significance that the birth mother was supportive of the application.
Geoffrey Shannon, the Children’s Rapporteur, said that the fact that this case had to come before the Courts was a failure of the Oireachtas. He said “we cannot turn a blind eye to surrogacy; we need to make provision for it in law or make it illegal”.
The future for surrogacy in Ireland
The Minister for Justice Alan Shatter has recently said that he is preparing a new Bill that would address aspects of the law regarding surrogacy in Ireland. He indicated that he was hoping to publish the Family Relationships and Children Bill later this year.
The National Infertility Support and Information Group have said that they welcome the ruling and hope that as a result progress on regulating surrogacy would be made, as recommended in the Report of the Commission on Assisted Human Reproduction in 2005.
Many religious groups oppose surrogacy from an ethical perspective, with the Iona Institute calling on the Government to introduce legislation to prohibit surrogacy. In many European countries such as Italy, Germany and France, surrogacy is illegal.
It is however the commercialisation of surrogacy that is becoming the source of wider unease. In countries such as the UK, it is illegal to pay for surrogacy, however, in many countries, such as India, surrogacy is a million Euro industry.
Regardless of individual views, surrogacy is an area that calls for examination and legislation as a matter of urgency, in order to provide guidance and certainty to both parents and children.
For more information, please contact any of the following from our Child Care Law Department:
19 March 2013