Campaigners hope for end to legal limbo for surrogate children
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Ireland is moving a step closer towards enshrining the legal status of hundreds of surrogate children and their parents in Irish law.
The Government has announced the establishment of a special Oireachtas committee to examine legislative provisions to provide for parental status in Ireland in international surrogacy arrangements.
At present there are no laws governing surrogacy in Ireland, which means biological fathers of surrogate children have more rights than the surrogate child’s intended mother or second parent.
Would-be parents of surrogate children can spend years battling in court for basic parenting rights.
Currently, the mother or the second parent is not entitled to those rights and has to settle for guardianship — which expires when their surrogate child reaches 18.
This legal limbo means, for example, that until the mother of a surrogate child is granted guardianship rights, she cannot give consent for her child to go on a school trip or open a bank account for them, or even apply for their first passport.
And, once that child reaches 18, they would have no legal standing when it comes to making important health decisions for their parents. If their mother or second parent dies, they would have the same legal status to their parent’s estate as a complete stranger.
The fact that the committee is to examine “retrospective provisions” has been welcomed by the Assisted Human Reproduction Coalition.
The coalition also said it hoped the committee would rely on existing research in this area, namely the Review of Children’s Rights and Best Interests in the Context of Donor-Assisted Human Reproduction and Surrogacy in Irish Law.
Carried out by Special Rapporteur on Child Protection, Conor O’Mahony, and published in December 2020, it made a number of recommendations.
These included that the Oireachtas should enact comprehensive legislation regulating surrogacy “at the earliest opportunity”.
UCC-based Professor O’Mahony also recommended that the Oireachtas should amend the Children and Family Relationships Act 2015 to address a number of anomalies arising in respect of the recognition of family relationships in cases where children were born following donor assisted human reproduction (DAHR) procedures.
Surrogacy legislation should, he said, make provision for the recognition of both domestic and international surrogacy arrangements.
He said that provision should be made for “a pathway to parentage in respect of surrogacy arrangements which occurred before the commencement of the new legislation”.
In other words, whatever the bill provides for — when it eventually sees the light of day — should apply retrospectively.
Cathy Wheatley, spokesperson for Irish Families Through Surrogacy — which is part of the coalition — said: "Our children are Irish citizens and deserve to be afforded the same provisions as every child in Ireland and have a legal relationship with both parents.
“At the moment, Irish children are being left in legal limbo as they can often wait years to be granted parental rights to one parent before guardianship proceedings can even take place for their second parent.”