Surrogate parents are in a legal limbo due to lack of legislation

Emily bonded with her daughter, who was born via a surrogate, as soon as she was placed in her arms. However, she has since separated from her husband and fears her parental status will not be recognised due to the lack of legislation
Surrogate parents are in a legal limbo due to lack of legislation

"In their eyes, I am their mother. In the State’s eyes I am not." Picture: iStock

It was a Friday night in January when Emily*, a Midlands-based professional on the cusp of turning 50, sat down with her husband to watch an RTÉ documentary.

The couple had married with the intention of building a family, but it hadn’t happened. IVF procedures hadn’t worked. A journey to adopt, begun very hopefully, had stalled.

The TV documentary that night, almost eight years ago now, told the story of Clare-based couple Fiona Whyte and Seán Malone, how they’d become parents of two children through international surrogacy. “I was so struck by it. We decided to try this one last thing," says Emily, who describes herself as very maternal.

But she wasn’t expecting miracles. “To be honest I didn’t expect it to work. But still I thought it might end in joy. It did for Fiona and Sean and it might work for us.” 

Within weeks, Emily contacted a clinic in Mumbai, India. “They were fabulous. They had fluent English. Everything was easy to negotiate. We had to prove we were married, that we’d been through IVF – that we’d tried to have a family but it wasn’t possible.” 

Next was a meeting with the bank manager – the whole process of becoming parents through international surrogacy can cost in the region of €50,000 or upwards. “People see surrogacy as some sort of celebrity thing, an easy way of having a family – it’s an absolute last resort for so many women,” says Emily.

The couple – having already chosen a surrogate to carry the pregnancy – opted for egg donation from a donor presented by the clinic. “In Mumbai we waited to see if the embryo would be suitable. It was. The day the clinic phoned to say it hadn’t implanted, I cried…a lot.” 

Having a number of viable embryos, they decided to try again with a different surrogate. “Four weeks later we got news she was pregnant. I can’t describe the joy. I was scared too, that even at this stage something could go wrong. It seemed such a precious, fragile thing to me.” 

For Emily, the nine months of pregnancy were difficult. “It was surreal. There was no outward sign of anything different. Yet I knew this little baby was being incubated for us in another country. It was just very stressful, having no control. I thought I’d never get through those months.” 

Regular clinic updates on how the surrogate was doing helped, and 3D scans of the baby four months in were “an unbelievable joy”, recalls Emily. “I was just ecstatic with excitement.” 

When news came from India towards the end of the pregnancy that the surrogate had been admitted to hospital, the couple flew to Mumbai. They weren’t in the room when their baby was born. “But she was put straight into my arms and from that minute she has been there,” says Emily, who’d worried beforehand she wouldn’t bond with her daughter. “I had to prepare for being a mother as soon as I knew she was on the way. But the tangibility of her being put in my arms – from that moment she has been first, and I’m second and that’s how it will be ‘til I die.” 

No parental status 

In Ireland, a biological father – who’s a parent through surrogacy – must go to court to establish his parentage, custody and guardianship. This process can take up to four years and it’s only when it is complete that his partner can go to the District Court and seek guardianship and custody. It would be two years before an Irish court formally appointed Emily legal guardian of her child.

“It’s not ‘parent’. It’s ‘guardian’. Under Irish law, that’s what you’re able to apply for after two years of continuously caring for your child,” she says.

But in the first nine months of mothering her daughter – and with her husband recognised by Irish law as the baby’s dad – Emily didn’t think too much about how she had no legal relationship with their child. Motherhood involved a learning curve and those first months of parenting were amazing. “I was accepted as her mother by everybody. I was in that bubble of parenthood and for that period it didn’t worry me.” 

And while she naturally had worries once she began the complicated process of applying for guardianship, she was eventually appointed legal guardian just after her daughter’s second birthday. But guardianship expires when the child turns 18, at which point the parent is a legal stranger to them. It affects succession and inheritance rights.

But this is not Emily’s chief concern right now. Her life, she says, “has not turned out as I expected”. She and her husband have separated. And while they share joint custody of their child, she is concerned that she doesn’t have parental status. “It is one thing to be in a committed relationship and to be raising a child born via surrogacy, where one or both don’t have a biological connection to the child. But my situation underlines how that lack of parental status for the non-biological parent is a concern.” 

Last month, the Business Post reported that the Government is to defer legislation for international surrogacy. The news caused fear for families countrywide whose children were born via surrogacy. Rosanna Davison posted about her daughter Sophia – born via a gestational surrogate – saying she was “deeply concerned”. Westlife’s Mark Feehily, whose child was born to a surrogate in the US, called on the Government to publish legislation to regulate surrogacy. At home with her now six-year-old daughter – who is “such a gorgeous little thing, so affectionate, so amazing” – Emily was devastated.

A legal stranger to your child 

 Mary Seery Kearney with her daughter Scarlett, 6, who was born by surrogate. Picture: Moya Nolan
Mary Seery Kearney with her daughter Scarlett, 6, who was born by surrogate. Picture: Moya Nolan

Senator Mary Seery Kearney – herself a parent through surrogacy – is more hopeful. She cites the report of special rapporteur on child protection Professor Conor O’Mahony, published in March, which contains a pathway to legislate for international surrogacy. She also mentions numerous meetings held to discuss this by ministers of three departments. A special time-limited Joint Oireachtas Committee is being proposed – this should report before the committee stage of the Assisted Human Reproduction Bill, so the recommendations can be incorporated.

“I believe this will give an opportunity for the lived experience of surrogacy, experts in the field and international experience to be heard, so that we bring into law a mature piece of legislation that provides a pathway to both domestic and international surrogacy,” says Seery Kearney.

But it must happen quickly, she says. The week following the Business Post article, at an Oireachtas Debate, she urged the Government to “hasten through” legislation, saying the delay was “appalling”.

Seery Kearney now has guardianship and custody of her six-year-old daughter, Scarlett. But she recalls how vulnerable she felt when Scarlett was 16 weeks old and developed a rash. The status of legal guardian hadn’t yet been granted to her, so under Irish law she was a ‘legal stranger’ to her child.

“I panicked – I was a new mother. I brought her to Crumlin. As they were examining her I had to explain she’d been born through surrogacy and I didn’t have any legal right to sign consent for any medical procedures. My husband was in Limerick at a conference and he dropped everything and came.” 

As it happened, Scarlett had a heat rash and the hospital treated Seery Kearney very kindly. “But I had that experience of what if? If it had been meningitis, then was he going to get there in time to sign for any procedure to be done?” 

 Mary Seery Kearney with her daughter Scarlett, 6, who was born by surrogate. Picture: Moya Nolan
Mary Seery Kearney with her daughter Scarlett, 6, who was born by surrogate. Picture: Moya Nolan

At the Oireachtas Debate, she highlighted the plight of mothers denied legal connection with their children – and children denied legal recognition of their relationship with their mothers. “There are women around [Ireland] who are not entitled to sign permission slips for their children in school and who’ve been rejected and told they aren’t the mothers of their children. There are children teased about this in school. There are children, born via surrogacy, who’ll shortly turn 18, who will now never have that legal relationship with their parents because they’ll be adults.” 

Seery Kearney says where the relationship between biological father and his partner breaks down, the child – and the vulnerable place the partner is in [around] the legal relationship with the child – "can be weaponised". 

“Mothers are afraid to go to court in case the judge isn’t sympathetic to their position due to the precariousness of their status in law," she says. 

At home with her daughter, Emily watches her little girl play with dolls, arranging them in family units. “She loves family. She’s never happier than when she’s surrounded by family. She has known since she was very small that I didn’t give birth to her. It doesn’t make the slightest difference. We’re like peas in a pod. She loves me and I adore her and I’m so grateful for that.” 

*Name changed.

Legislation for international surrogacy

A memorandum is shortly to be brought to Cabinet with proposals to ensure the rights, interests and welfare of everyone involved in international surrogacy are considered. ‘Everyone’ includes children born through surrogacy, surrogate mothers and intending parents.

A Special Joint Oireachtas Committee will consider the issue of international surrogacy and will be given a time-frame of four months to report with recommendations.

It is expected any necessary legislative provisions which arise out of the report of the Joint Oireachtas Committee will be inserted into the Assisted Human Reproduction Bill at the committee stage.

In Co Clare, Fiona Whyte – the mum who featured in the TV documentary, Her Body, Our Babies – is concerned the creation of another committee is “just another example of kicking the can down the road” on legislating for international surrogacy. 

She says international surrogacy is a reality in Ireland and legislation is urgently needed. “International surrogacy has been happening. It is happening, and it will continue to happen. It is the route to surrogacy Irish couples will predominantly take. The Government needs to legislate to protect the intending parent, the surrogate and the children born through surrogacy. And the legislation has to recognise children born through surrogacy retrospectively.”

Speaking of her children, Ruby and Dónal, now eight years old, she says: “I am their mother. I feel inherently, inside, their mother. I’ve looked after, cared for and nurtured them since they were born. I tuck them in at night. I kiss that hurt knee when they fall down. In their eyes, I am their mother. In the State’s eyes I am not – it is the legal implications of this that are of huge concern.”

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