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Opinion: Ireland's outdated definition of 'Mother' leaves thousands of families in limbo

Dearbhla Crosse meets families urging the government to keep promises on changes to assisted reproduction legislation.

Dearbhla Crosse

“IT’S INCREDIBLY SAD when your children have fewer rights than other children because of who you love and who you want to spend the rest of your life with.”

Irene moved home with her wife Maude and their two children from Belgium last year: “We quickly realised our children’s legal connection to my wife had been stripped away just by moving across borders. Maude is our children’s genetic mother. Legally, she is a stranger.”

Under Irish law, children who are donor-conceived and born outside of Ireland to same-sex parents cannot be legally connected to both parents. This is based on the patriarchal definition of ‘mother’ enshrined in Irish law as a ‘female who gives birth’. This characterisation assumes that the only way to be an emotional and physical caregiver is to give birth.

Yet, for heterosexual couples with donor-conceived children, even when the child isn’t genetically connected to either parent, as long as the mother gives birth, both parents are automatically on the birth certificate.

Assisted reproduction

The Children and Family Relationships Act signed into Irish law last May stipulates if a child is born through assisted reproduction, both parents can now be on the birth certificate.

But you must be two women who conceive through an Irish fertility clinic, with a traceable sperm donor and your children must be born in Ireland. Couples can apply for retrospective parentage, even if they used a foreign clinic but only if their children were conceived before May 2020 and were born in Ireland. Gay male couples who use surrogacy and thousands of families like Irene and Maude’s are excluded.

Irene and Maude’s two children were conceived through Reciprocal IVF in Belgium. This means the couple used Maude’s eggs but Irene was their children’s birth mother. Despite this, Maude has no legal claim to her biological children because she didn’t physically give birth and they were born in Belgium.

Irene and Maude Irene and Maude with family Source: Dearbhla Crosse

Ranae von Meding, CEO of Equality for Children, and her wife Audrey faced similar difficulties prior to the change in the law.

I gave birth to both of our children but my wife is their biological mother. We are covered under recent legislation as our children were born in Ireland and conceived before 2020. But we still haven’t been able to get their birth certificates changed.

The majority of LGBT+ couples and around one in six heterosexual couples in Ireland require assisted reproduction to conceive a child. Since Ireland is one of two EU countries not providing public funding for fertility treatment, the cost is so prohibitive that many are forced to access services abroad. Back in 2015, Reciprocal IVF wasn’t even available in Ireland so Ranae and Audrey had Reciprocal IVF in Spain and their embryos are still in Portugal.

If we want to use our embryos, any future children we have won’t be covered as technically they will have been conceived after May 2020. Potentially we could face a situation where some of our children would have legal rights to both their parents but our other children won’t.

Surrogacy

When it comes to surrogacy, there isn’t any legislation. Infertility, medical conditions or being in a same-sex couple are just three reasons why people consider surrogacy. A woman (surrogate) gives birth to a child on behalf of a couple or individual usually by carrying the embryo created solely by the intended parents.

Many Irish heterosexual couples undergo surrogacy in Ukraine where they are automatically the legal parents once the child is born. Yet, under Irish law, the surrogate is considered the mother, even if she has no biological link to the child. The legal definition of ‘mother’ discriminates against all couples who use surrogacy as their child is birthed by a surrogate.

Although mothers can apply for guardianship after two years, this only lasts until the child is 18. In theory, a mother can gain legal rights to her child by adopting them but so far no family has been successful. This is because certain medical issues like previous cancer are the very reason women who choose surrogacy cannot avail of adoption.

Aisling had twins through surrogacy in Ukraine in 2017 after recurrent miscarriages. Yet, she wasn’t entitled to maternity leave – a right afforded to all other parents, including adoptive parents. She also can’t bring her children out of Ireland without signed permission from their father.

The Report of the Commission on Assisted Human Reproduction recommended that a child born through surrogacy should be that of the commissioning couple.

As Aisling says, “legislature must allow us to be legal mothers; I am the only mother my children have ever known.”

As Ukraine only allows heterosexual couples to avail of surrogacy, same-sex couples go to the UK, US, or Canada. Gordon and his husband Dan went to Canada as it was important to have both their names on the birth certificate. But as soon they got to Ireland, it was invalid because the “mother” who gave birth has to be on it.

Their daughter was born in Canada during lockdown last year just before Canada was placed on the mandatory hotel quarantine list.

We said we couldn’t quarantine in a hotel in Dublin with our three-year-old and two-week-old baby but were told if we got arrested our children would be taken away from us as legally we had no claim. Fortunately, the government changed the criteria allowing babies 30 days or younger to quarantine at home. We flew on her the 29th day.

But while transiting through Heathrow, security confiscated the breastmilk, leaving them without even formula to feed their daughter. Gordon says:

Border control asked what our relationship was to our children despite showing them the documents. Eventually they agreed to issue our children visitor’s visas as they have Canadian passports. We nearly missed the flight. We had no bags, no buggies, no breastmilk. I cried all the way home.

Biological fathers aren’t automatically recognised under Irish law and the legal father of the child is the person married to the surrogate. Gordon says the government shouldn’t just fix the legislation for one group but fix it for everyone, “We have to prove guardianship in court. In Canada, there are legal frameworks in place to protect both us as parents and our surrogate. The legal hoops and costs it takes to bring children born to a surrogate home to Ireland are discriminatory. All I want is for future generations to not have to deal with this.”

Why the delays?

EU Commission President Ursula Van der Leyen has stated that a parent in one country should be considered a parent in all countries. So why is this not the case?

Firstly, Irish law has not caught up with developments in embryology and assisted reproduction legislation. Equally, Irene says, “It’s difficult to ensure parentage in one EU member state transfers to another. Family law and the definition of a family is a member state competence, which isn’t something the EU can impose.”

dan and gordon Gordon, Dan and their eldest child Tadhg. Source: Dan and Gordon

The Irish state is however legally obliged to comply with the Convention of the Rights of the Child within which Article 8 requires recognition of parent-child relationships involving a genetic link. So far, it hasn’t.

For the first five years of their children’s lives, Ranae’s wife Audrey wasn’t legally allowed to do anything.

A parent who isn’t considered a legal parent can’t make basic decisions about their child’s upbringing like consent to a blood test, a vaccination or educational facilities. Children wouldn’t benefit from the same family inheritance law.

Ranae says, “If the legal parent were to become incapacitated, the unrecognised parent has no legal right to their child and that’s very frightening.”

With surrogacy, as legal guardianship ends at 18, children won’t be able to make future decisions about parental care if anything unexpected happened.

Secondly, there is no internationally accepted legislation on surrogacy. Commercial surrogacy is still illegal here and throughout most of Europe. But like most reproductive health restrictions, making it illegal doesn’t make it safer.

This leads to concerns not only for the protection of intending parents but the welfare of surrogate mothers. Irish Families Through Surrogacy says Irish solicitors only work with reputable clinics in Ukraine and the Irish embassy there will help ensure more stringent parameters, yet “more urgent legislation in Ireland is needed to protect our children.”

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Karen Tobin, partner at Family law firm Comyn Kelleher Tobin says, “the Assisted Reproduction Bill won’t go far enough in its current format as it only considers altruistic surrogacy with a genetic connection and doesn’t include international surrogacy.” 

The further delay on international surrogacy legislation announced this week is another devastating blow to the thousands of families in legal limbo. Irish Families Through Surrogacy expressed its dismay at the Sunday Business Post report that this will now no longer happen due to legal constraints.

The 1994 Hague Convention significantly improved international adoption standards, so similar criteria is necessary for the regulation of surrogacy, such as a register of countries with like-minded human rights charters.

The State is failing to recognise the varying facets of parenthood. At a minimum, birth certificates should simply register ‘parents’ and the definition of ‘mother’ must be amended to reflect this. As the fabric of families changes, so too must Irish law.

As Ranae says, “Ireland should be shamed for what they’ve done to our families. In 2015, Ireland said yes to love. What we have now isn’t equal.”

Dearbhla Crosse is a freelance writer, teacher and advocate on sexual and reproductive health and rights.

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