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Family Law Solicitors

Surrogate Parents Seek Legal Rights

Sunday, 23 December 2012

The Sunday Times

Mark Tighe

A married couple are to ask the High Court to amend the birth certificate of their twins who were born to a surrogate mother. The twins, who are under six years of age, were borne by the wife’s sister.

Although the twins are genetically the children of the married couple the General Register Office (GRO) has refused to record them as the parents. The married woman’s sister is instead registered as the children’s mother. The sister supports the couple’s efforts to be recognised as the legal parents of the children.

The landmark case by the couple has been set down for a six-day hearing at the end of January by the High Court. The couple, who live in Leinster, want to amend the birth certificates of their twins and want an order establishing their parental rights. The GRO and the attorney-general are defending the case. 

The twins were born after the couple went to the Sims clinic in Dublin and the births were believed to be among the first surrogate pregnancies achieved in Ireland. The married woman in the case suffered from a rare disorder that meant she could not become pregnant. Her older sister was implanted with embryos from the couple.

Irish clinics have since stopped allowing surrogate pregnancies because of a lack of legal clarity for the couples and babies involved. The majority of Irish couples using surrogate mothers now travel to the Ukraine or India where the practice is regulated.

Successive Irish governments have avoided legislating for surrogacy and assisted human reproduction despite a 2005 report by a government commission issuing detailed recommendations. This included advice to legalise surrogacy and to recognise the commissioning parents as the parents of any baby born through surrogacy.

Deirdre Madden, a lecturer at University College Cork and a member of the commission, said the case next month was very important for couples considering surrogacy.

“There is no legislation in Ireland which definitely states who the parents of a child are in circumstances of gestational surrogacy,” she said. “It is widely presumed that, in common with most other jurisdictions, the woman who gives birth to the child will be considered to be the legal mother irrespective of whether she is the genetic mother. However, this has never been the subject of judicial determination in Ireland.

“This case will be very important for couples considering surrogacy as it will clarify issues around the parentage of children in circumstances where the commissioning couple [intended parents] are the genetic parents of the child and the birth mother has no genetic relationship to the child.

“If the birth mother/surrogate is considered to be the legal mother then the genetic parents would have to avail of some legal mechanism, such as adoption or a guardianship application by the father, in order to secure a legal relationship with their own genetic child. Neither of these mechanisms were designed to cover the circumstances of gestational surrogacy and they do not provide an easy solution in such cases.”

Madden said implementation of her commission’s recommendations was long overdue. “The government has already been criticised by the Supreme Court in recent years for its failure to introduce legislation in this area and I am sure we will hear similar criticism in this case too,” she said. “The failure by the government to act on this unfortunately leaves families in legal limbo due to the uncertainty that prevails around determination of legal parentage and is certainly not in keeping with the best interests of the child.”

The GRO said its policy was “to register as the mother the woman who gave birth in all cases, including in cases of surrogacy”. It added that if the woman who gave birth is married, then her husband is presumed to be the father.

It declined to comment on the case before the High Court.

The Department of Health said James Reilly, the Health minister, was examining proposals for legislation but could not say when any new law would be introduced.