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Opinion: Legislation is urgently needed following Supreme Court ruling on surrogacy

It is a fact of life that parents will enter into arrangements of whereby a third party bears their child – so we need legislation that deals directly with surrogacy.

Katherine Irwin

THE SUPREME COURT today has ruled that the genetic mother is not entitled to be registered as the mother of her child if that child is born by surrogacy. One of the main reasons given by the Supreme Court is that to allow the genetic mother to be registered as mother would allow the donor of eggs for the purpose of Assisted Human Reproduction (AHR), eg by IVF, to be registered as the mother of a child born of such treatment.

This decision leaves the genetic parents of the twins born to the surrogate mother in a difficult place. She, being unable to bear children herself, had an embryo comprising gametes from herself and her husband implanted in her sister’s womb who bore the twins as a surrogate mother. When she tried to register herself as the mother of the twins she was not allowed to do so by the Registrar of Births Deaths and Marriages. She therefore brought an application to the High Court stating that once she proved that genetically she was the mother of the twins she should be allowed to be registered on the birth certificate. The High Court agreed with her and allowed her to be named as mother on the birth certificate.

Decision appealed by State

The State appealed this decision on the ground that the principle that whoever physically bears a child is the mother is a matter of public law in Ireland which cannot be set aside by private arrangements between individuals. The only way a child born by another mother can be registered as your child is by adopting it.

Lawyers for the genetic mother argued that since fathers can establish paternity by use of DNA then a mother should be allowed to do the same. As stated at the beginning of this article the State has to protect the many parents who have children by way of IVF and Fertility Treatment. To allow genetic parentage to be recorded on the birth cert could open potential floodgates of applicants seeking to be registered as legal parents of children born as a result of donor-based programmes.

Lawyers for the applicant mother argued that most donors are anonymous in any event but surely that is not the point here.

No existing law in Ireland dealing with these issues 

Chief Justice Susan Denham remarked that the question of registering children born by means of surrogacy would have to be dealt with by the legislation enacted by the Dáil and this was supported by a number of the other Supreme Court Judges.

The current position is that there is no existing law in Ireland dealing with IVF or surrogacy. In the Children and Family Relationships Bill 2014 these arrangement were provided for in the first version. However after the decision of the High Court a new Children and Family Relationships Bill was issued which deleted all reference to surrogacy whether by commercial means or otherwise. This means now there is a huge gap in Irish law.

The new draft of the Children and Family Relationships Bill 2014 does deal with the establishment of parentage where assisted human reproduction means are used. This is, however, still only a bill and will be debated through the Oireachtas. It does provide for a mechanism for recognising the parents of children born by AHR by means of an application to court or obtaining a declaration of parentage.

While it is impossible not to have the upmost sympathy for the parents of the twins in this case it is also important for certainty to prevail for parents who have children by way of AHR.

The changing nature of reproduction needs to be properly addressed

What needs to happen – and happen quickly – is that the Oireachtas now puts forward new heads of the Children and Family Relationships Bill 2014 which deals directly with surrogacy. It is a fact of life that parents will enter into arrangements of whereby a third party bears their child. The situation is uncertain and it is no exaggeration to say that it can be terrifying for parents where they find themselves in a position where they cannot give inheritance rights to their children, their children’s property rights are affected and even questions of medical consent arise in the day-to-day care of children. These rights are taken for granted when we are talking about the traditional family unit and children born to both parents in the usual way.

The changing nature of reproduction in society brought on by both scientific advances and demand for alternative family units such as homosexual partnership require urgent legislation by the government.

The question of same-sex marriage is being introduced by way of referendum next year and, in this context, the definition of parentage and rights to be registered on birth certs becomes even more urgent.

Katherine Irwin is a partner and head of Private Client and Family Law at Beauchamps Solicitors.

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Leo Varadkar promises legislation on surrogacy and egg and sperm donation

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Katherine Irwin

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