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Surrogacy in Ireland: Where do we stand?

The referendum on marriage equality is only a few days away. However, other issues have been entering the debate.

Image: Shutterstock/Syda Productions

VOTERS ARE BEING asked to take to the polls on 22 May to make their opinion known in the Marriage Equality referendum.

However, marriage is not the only thing being brought up in the debate in the run-up to the vote.

Other matters such as the family, procreation and surrogacy have all been raised in the debate.

Ireland has long kept an arms-length approach to the issue of surrogacy.

So, where do we stand now in terms of the law.

Well, the short answer is there are no surrogacy laws.

It was expected that this would all change with the Child and Family Relationships Bill.

This piece of legislation had been a long time coming and deals with issues relating to children’s rights, the family, guardianship and adoption.

Up until the last minute, it also included surrogacy, but this was omitted in the final draft.

Surrogacy in Ireland does happen, it just isn’t governed by law.

This became apparent under the Supreme Court case brought by the genetic mother of twins whose sister gave birth to them as a surrogate.

She sought to be named as mother on the children’s birth certs but the State has insisted that only the woman who gives birth to a child can be recognised.

The court ruled that only the birth mother can appear as the legal mother of a child.

babay Source: Shutterstock

The court also criticised the lack of legislation around surrogacy.

Speaking to, Kathy Irwin of Beauchamps Solicitors said that surrogacy laws are still the same as they were before, that there are none.

“Unless parents can bear a child, they have limited options,” she said, adding that while there are no laws governing surrogacy, couples still seek out informal arrangements.

“For example, if two males were to marry, the only possibility open to them would be surrogacy or adoption,” she said.

Currently there is no legal structure for surrogacy in Ireland and that will not be changed by the referendum. The issue of surrogacy will have to be dealt with by legislation in the future.

There are no hard figures as to who or what type of couples are availing of surrogacy in Ireland.

As it stands, if a couple were to use a surrogate abroad, which many do, then there are still issues with bringing that child back in to Ireland, with the couple having to apply for guardianship of the child.

What are the No campaign saying?

The poster from the Mothers and Father Matter No campaign group shows a photo of a toddler along with the banner “Surrogacy? She needs her mother for life, not just for nine months—vote No”.

Gay Marriage Equality Referendums Source: Mark Stedman/Photocall Ireland

They argue that the government have been deliberately evasive on what a passed referendum will mean for the right to procreate.

They state the right to procreate is derived from Article 41 of the Constitution and argue that if the referendum passes same-sex married couples will likewise have a constitutional right to procreate.

What does the Referendum Commissioner say about all this? 

The head of the Referendum Commission, Justice Kevin Cross said the passing of the referendum will not give a same-sex married couple or any married couple a constitutional right to procreate.

Speaking on Newstalk Breakfast this week, he said voting yes in the referendum does not give a couple – be they gay or straight – the automatic right to children. 

The courts have held that a family have the right to procreate – this was said in relation to a married couple, one of whom was in prison couldn’t exercise that right, but it was never said that access by artificial means of having children…

Referendum Commission urges Chairman of the Referendum Commission Mr Justice Kevin Cross. Source: Photocall Ireland

There is no automatic right to surrogacy in relation to this referendum, he said.

There is no right to surrogacy – at the present moment surrogacy is not regulated.There is no right of access in law and there is no right to prohibit surrogacy.

He said the government has announced plans to regulate surrogacy.

“I don’t know how they are going to be regulated but it is going to be regulated independent of the outcome of this referendum.”

The outcome of the referendum also does not impact on gay couples adopting children, as this has already been set out in law by the Oireachtas.

“There is no right for anyone to adopt. People have a right to apply for adoption. Adoptions are always carried out in the best interests of the child and this is now a constitutional requirement since enactment of Children’s referendum.”
Who can apply for adoption is already set out in legislation. For a long time a couple and a single person of either sexual orientation could apply for adoption. Recently, irrespective of this referendum, the Oireachtas has passed a law which provides that same-sex couples can apply for adoption, just as hetrosexual couples can.

Okay, so the government plans to deal with the whole surrogacy issue later on?

Correct. The government has agreed to prepare new laws to regulate surrogacy and the broader area of assisted human reproduction and associated research, and bring to an end the legal uncertainty in which it all currently operates.

“The priority throughout will be to safeguard the welfare, safety and best interests of children and to uphold the principles of consent and equality,” Minister for Health Leo Varadkar said.

community-first-response-schemes-2-630x470 Source: Sasko Lazarov/Photocall Ireland

Under the proposed new laws, commercial surrogacy will be banned and the news laws won’t “discriminate against people on the basis of their relationship status or their gender or their sexual orientation,” he said.

Why did government not include it in the Children and Family Relationships Bill? 

The Minister for Justice France Fitzgerald said it was omitted from the final draft of the Children and Family Relationships Bill because further policy analysis was needed in light of the Supreme Court ruling.

She defended leaving it out stating there has not yet been enough public consultation on some of the practical issues involved.

Childrens Family Bills ine Gael Minister for Justice and Equality, Frances Fitzgerald at a seminar which focused on the Children and Family Relationships Bill. Source: Mark Stedman/Photocall Ireland

However, her predecessor, Alan Shatter, who originally placed surrogacy in to the Bill from the very beginning, criticised the government’s decision.

In an interview with The Irish Times Shatter said he was not surprised surrogacy was being brought into the debate on marriage equality.

Shatter said that as the issue of surrogacy had not been dealth with in the Children and Family Relationships Bill it was “inevitable” the issue would be misused by No campaigners in the equality referendum.

“I think that attempt would have been completely undermined if the issue had already been comprehensively dealt with.”

He said the issue of surrogacy is irrelevant to the referendum debate and said it is being misused by the opposition to create confusion. 

He said children are being dishonestly used as a weapon in this referendum by individuals.

While the government have committed to legislate for surrogacy, Shatter said he has concerns it will not be in the lifetime of this government and the issue is being “kicked down the road”.

Tell me again, what is the referendum vote about? 

In this referendum, you may vote Yes or No to the proposal to include a new clause about marriage in the Constitution.

This new clause provides that two people may marry each other regardless of their sex.

The proposed amendment to the Constitution is contained in the Thirty-Fourth Amendment of the Constitution (Marriage Equality) Bill 2015.

It is proposed to add the following to Article 41 of the Constitution:

‘Marriage may be contracted in accordance with law by two persons without distinction as to their sex’.

The constitutional amendment will involve the insertion of this extra section into Article 41 of the Constitution.

The section will be Article 41.4 and will come at the end of the provisions on marriage of that Article. No change is proposed to the existing constitutional provisions on marriage.

Read: There’ll be no such thing as a designer baby under this new law>

Read: New law will make it illegal to pay for surrogate mothers>



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