THE PROCESS FOR bringing babies who are born through surrogacy in Ukraine back to Ireland may be handled more quickly than usual amid the tense situation between Ukraine and Russia.
The Journal understands that the babies of more than a dozen families, due to be born through surrogacy in Ukraine between now and the end of May, will likely be brought to Ireland as quickly as feasible after birth to reduce the time that families spend in the country.
However, documents such as the baby’s birth certificate will still need to be compiled before the child can be brought to Ireland.
Escalating tensions in the country, which is frequently chosen by parents looking to have a child through a surrogate parent, have raised concern for the welfare of children, parents and surrogates.
Russia is clashing with Ukraine and NATO over Ukraine’s desire to join the NATO alliance.
In recent weeks, diplomats have held crisis talks as more Russian forces were placed at the Ukrainian border.
The Department of Foreign Affairs issued advice at the end of last week against travel to Ukraine and urged Irish citizens to leave the country.
The department is working with families whose babies are soon to be born in Ukraine on how they can be cared for safely.
It is understood that the department is looking to move as quickly as possible to bring babies home soon after birth, which usually takes several weeks.
Sara Byrne, a spokesperson for campaign group Irish Families Through Surrogacy, told The Journal that it will be important to return newborns to Ireland quickly while “also keeping the integrity of Irish citizenship”.
“At the moment, the process would take about three to four weeks by the time the baby’s birth is registered, the DNA test is done, and then the emergency travel certificate would be issued,” Byrne said.
“The legal professionals have been looking at that to see what is the minimum that needs to be done make sure that the babies get home safely but also that they will be protected legally, that they would have their citizenship,” she said.
In a statement to The Journal, a spokesperson for the DFA said: “The Department is in direct contact with all of those scheduled to travel to Ukraine for surrogacy purposes.”
“We will continue to provide support to each of these individuals and families with advice relevant to their particular situation,” the spokesperson said.
“Every case is different and there are a number of external factors that can impact how long families need to remain in Ukraine following the baby’s birth, including the length of time it takes to obtain vital documents such as the baby’s birth certificate.”
Professor Conor O’Mahony, the Deputy Dean of UCC’s School of Law and the government’s Special Rapporteur on Child Protection, described the existing process for returning a child born through surrogacy back to Ireland, which can vary depending on the circumstances.
“If the father’s genetic material is in use, then the pathway would be that the father could first of all apply to the court for a declaration of parentage based on DNA testing,” O’Mahony said.
“If you obtain that, then you can seek to apply for citizenship based on the child being the child of the father, who is an Irish citizen. That can take time, going through all of that process is not something that happens overnight,” he said.
“You can have a gap in time during which the child is effectively stateless and that the child under Ukrainian law would not be recognised as a Ukrainian citizen but not yet be recognised as an Irish citizen.”
He said it is a “really ad hoc situation that we have at the moment”.
Children are returned to Ireland “on the basis of this very ad hoc arrangement where they seek temporary travel certificates. There’s no proper legal underpinning for any of that.”
Anxiety for parents
Some parents are already in Ukraine or are due to travel very soon for the births of children who are expected soon.
More are expecting babies later in the year, while some who were in the early stages of the process and were due to travel for egg retrieval or embryo transfer have postponed procedures for four to eight weeks.
Speaking to The Journal, Senator Mary Seery-Kearney, Fine Gael’s spokesperson for children in the Seanad, said that the situation has created more anxiety for parents during what is already often a difficult process.
“These are parents who have already come through a long, arduous journey in trying to have a baby,” Seery-Kearney said.
“Any pregnancy is nerve wracking and a time of anxiety, but pregnancy through surrogacy is all the more,” she said.
“Now, the heightening tensions and potential conflict naturally is a devastating blow to the families.”
The senator highlighted that “the advice from the department is advice, it’s not a travel ban, it is advice”.
“Where parents decide to travel, it’s going to what could be potentially a conflict zone, so really the urge is to please do not travel, but in the event that they choose to do so, they are still assisted and conversations have occurred in support of families for couples who have made that decision to travel.”
Surrogate mothers
As well as their babies, expectant parents are concerned for the wellbeing of their surrogate mothers.
“These are women that they’re in contact with. It’s not that they’re strangers, they’ve had contact all the way through this pregnancy,” Seery-Kearney said.
“In normal times, outside of Covid, they would have been there for scans. They’ve had to have a pregnancy during Covid as well as everything else. They are very concerned for the surrogates.
“To be fair, many of the clinics are responding extremely well. The wellbeing of the surrogate mother is being really well cared for and then the concern for the babies is to ensure that they’re in a place of safety and care while parents try to get to their babies. No one wants to be separated from their child and in a different country with a potential of conflict coming their way.”
Sara Byrne of Irish Families Through Surrogacy said that it is “an unprecedented time at the moment and things could escalate”.
“We don’t know what’s going to happen. The babies that are due now, their parents are there waiting for them or are going to be travelling very soon, and we obviously don’t want them there for any longer than they need to be,” she said.
We’re very mindful of the surrogate mothers as well, the stress for them. These women are heavily pregnant and obviously concerned for their own families as well.
“We want to make sure that once the baby is born, they will be able to get back to their own families as quickly as possible.”
Byrne said that officials in the Department of Foreign Affairs have been “very supportive and available” to couples.
“We hope that common sense will prevail and the process will be expedited as much as possible to ensure that our Irish citizens and children are brought home as quickly and safely as possible once they’re born.”
Legal reform
The focus on surrogacy in Ukraine has highlighted long-standing calls from campaigners and experts for legal reform on international surrogacy in Ireland.
In Ireland, while surrogacy is permitted, current legislation does not specifically regulate it domestically or internationally.
O’Mahony, as Special Rapporteur on Child Protection, published a report last year on international surrogacy and Ireland.
He recommended that Ireland should try to create a legal environment where domestic surrogacy is more attractive than international surrogacy to reduce variables and risks, but also to regulate international surrogacy for when it does occur.
It’s far past time that we put in place a legal framework to deal with this.
“When you’ve no laws, not only are you not facilitating these issues in the context of surrogacy, you’re also failing to regulate the risks arising from abusive practices or exploitation or potential trafficking of children and so on, if you don’t have proper safeguards in place, then those risks will emerge as well.”
Dr Lydia Bracken, an Assistant Dean at the University of Limerick and lecturer in its School of Law, explained to The Journal that the legislative gap creates significant complications in the everyday lives of families.
“From a parent’s point of view, it means that our existing rules of parentage will apply, such that the woman who gives birth to the child under the Irish legal system is always regarded as the child’s mother. Who the father is is determined in a few different ways, but essentially, the genetic father would be the legal father,” Dr Bracken outlined.
“That means that the intending parents who engage in the surrogacy in the first place might have quite limited options in terms of themselves being recognised as legal parents,” she said.
In a situation, for example, involving an opposite-sex couple, it means that the genetic father can be recognised as a legal father for the purposes of Irish law, but the intending mother cannot.
“And in the case of a male couple, it would mean that the genetically-related father can be recognised as a legal father but then the other father, who is not genetically related, cannot be recognised as a legal parent under Irish law.”
The parent who isn’t recognised legally can apply for guardianship of the child, but must wait for two years before they become eligible.
Guardianship gives the parent more decision-making capacity and rights and responsibilities in relation to the child.
However, “until you acquire guardianship, you don’t have any of those kind of rights and responsibilities, even though these are the people who are caring for the child on a day to day basis”.
“At a very fundamental level, it can frustrate routine family life in terms of bringing the child to the doctor and consenting to medical treatment, or, at the moment, things like consenting to vaccines,” Bracken said.
All of that would be something that a guardian can do but until you meet that two-year waiting period to apply to become a guardian, then you don’t have any of those powers.”
Additionally, it creates challenges around inheritance rights and the child’s legal relationship with their wider extended family, she explained.
Before a child carried by a surrogate can be brought home to Ireland from a country like Ukraine, a DNA test is carried out.
“In terms of the legal process to bring the child home from Ukraine, there would need to be a DNA test done to show, typically, the genetic relationship with the intending father,” Bracken said.
“That process needs to happen before the travel documents can issue for the child to return home. That, if the parents can’t travel to Ukraine, would be delayed at the moment.”
In 2017, the general scheme of the Assisted Human Reproduction Bill was published with a view to outlining how fertility options like surrogacy and IVF may be regulated in Ireland.
The bill has undergone pre-legislative scrutiny.
“It’s expected that that will be revised and we’ll see a revised version of that bill this year,” Bracken said.
“But it is notable that as originally drafted, at least, it doesn’t include provision for international surrogacy,” she said.
“So in terms of all of those issues for parents not having the appropriate legal status to actually undertake their caring role, unless international surrogacy is addressed in the legislation, those issues will still continue. It will mean that children will continue to be born into a situation where they don’t have a legal relationship with both of the parents who care for them on a day-to-day basis, which I believe from a children’s rights perspective is totally inadequate.”
A planned Special Oireachtas Committee on International Surrogacy could lead to the introduction of regulations for international surrogacy into that bill.
“Depending on the outcome of this committee, it might be included, so it’s not that the door has been shut completely. I think we will have a lot more discussion about the regulation of international surrogacy in the months ahead.”
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