The Irish Times
Complications over babies’ status as birth mother is actual mother for legal reasons
Surrogacy is complex, often cumbersome and fraught with pitfalls, yet it is booming. It is becoming a global business, an expensive option for childless or same-sex couples seeking to start a family, although in the developing world little of the money involved trickles down to the surrogate mothers involved.
The extent of the trade is revealed by the figures compiled by Australian not-for-profit Families Through Surrogacy, which discourages exploitation of the women involved. Its survey suggests hundreds of Irish people have gone down the surrogacy route in recent years, although no one can say what the exact numbers are.
All of this points to the need for legislation to fill the legal vacuum that currently exists in Ireland. Unfortunately. Minister for Health Leo Varadkar’s proposed Bill on assisted legal reproduction can do nothing to regulate the practice of overseas surrogacy and will, by increasing regulation at home, drive demand for arrangements made in other countries.
There are no surrogacy laws in Ireland and there have been a tiny number of cases where surrogate mothers have given birth here. All involved altruistic arrangements, usually involving the sister of an infertile woman acting as a surrogate so she can start a family.
The problem is that such arrangements are unenforceable in the Irish courts and the surrogate is for legal purposes the actual mother, regardless of the wishes of the parties.
This position was confirmed by the Supreme Court last year, when the judges pointedly criticised the absence of legislation.
Overseas commercial arrangements are quicker and simpler and, in some countries, cheaper, so it is no surprise demand for them is growing. More than 40 people, most of them gay, attended an information meeting on surrogacy organised in Ireland by a US agency shortly before Christmas.
Marion Campbell, who represented the genetic parents in the Supreme Court case, says an increasing number of heterosexual couples are seeking information before going ahead with a surrogacy, although some leave it late, when the baby is almost due. Costs vary hugely, from over €150,000 in certain US states to €35,000 in India. The surrogate mother might receive about a tenth of these sums.
A legal minefield awaits families returning to Ireland with children born by surrogacy. US-born children at least have an American passport, but most others need to apply for emergency travel visas from the Irish authorities.
Regularising their status involves an application for guardianship by the father and a declaration of parentage, before an Irish passport can be obtained. Success is not guaranteed – the father must have a genetic link to the child – and the process is time- consuming and costly (up to €14,000). Some children have ended up stateless.
The options available are constantly changing. Thailand last month banned commercial surrogacy following a scandal last year when an Australian couple allegedly rejected a child when they discovered he had Down syndrome. Greece, meanwhile, has opened up for surrogacy.
The issue is highly controversial and there have been calls in Ireland for a complete ban. Yet surrogacy remains a reality internationally and something will have to be done eventually to simplify the arrangements for children returning to Ireland.