Children born through surrogacy face a further lengthy spell in legal limbo after the Supreme Court said it could not help a woman get lawful recognition as the mother of her surrogate-born twins.
The ruling, which reverses a High Court decision from last year, means possibly hundreds of women who have children through surrogacy remain without legal relationship to those children unless they are granted adoption or guardianship rights.
The Supreme Court said a legal vacuum existed around surrogacy and it had no legislative basis on which to grant the woman’s wish to be recorded as her twins’ mother on their birth certificates. However, the court also said there was no legal or constitutional obstacle to drawing up such legislation.
Mr Justice John Murray, said: “Surrogacy is neither authorised by law nor prohibited by law. It is for the Oireachtas to make the value judgement based on best policy.”
Health Minister Leo Varadkar said he intends to start work on an Assisted Reproduction Bill — the same promise successive ministers have made for the past nine years since the Commission on Assisted Human Reproduction reported.
Mr Varadkar said laws on surrogacy and the related issues of egg and sperm donation were “long overdue” but he faced a tight deadline to have what was likely to be a contentious piece of legislation drafted, debated, amended, and passed before the general election.
It is also unclear how his bill would fit with the Children and Family Relationships Bill from Justice Minister Frances Fitzgerald, who six weeks ago removed a section on surrogacy but retained related issues.
Family law expert Noel Doherty said the approach taken by the Government did not simplify matters.
“A child should have the right to information about their genetic parents and the right to a legal relationship with their genetic parents,” he said. “When you view it from the rights of a child as opposed to the rights of the mother, it’s easier to reconcile the difficulties.”
Mr Doherty said the Children’s Rights Referendum would strengthen the case for legislating from a child’s viewpoint and described the Supreme Court’s delay in ruling on the legality of the referendum result as “disgraceful”.
Marion Campbell, solicitor for the family at the centre of today’s judgment, said they were deeply disappointed. They could go to the European Court of Human Rights but Ms Campbell said the easiest solution lay with the Oireachtas.
“Surrogacy is happening. It is happening here in this country and happening abroad and children are being very exposed because there is no legal framework in place.”
The Irish Human Rights and Equality Commission backed the calls to legislate.
“We can not allow a situation where some children born today in Ireland or abroad with Irish parents to do not enjoy full equality with other children,” said chief commissioner Emily Logan.
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