Lack of regulation in surrogacy law is ‘tragic’: expert

An expert in assisted human reproduction has told the High Court the failure by Government to introduce legislation is “very disappointing” and “tragic”.

Dr Mary Wingfield, a consultant obstetrician gynaecologist at the National Maternity Hospital, Holles St, and a director at the Merrion Fertility Clinic, was giving evidence in a landmark action brought on behalf of twins born to a surrogate who wish to have their genetic mother’s name on their birth cert.

She said the lack of regulation in the area has resulted in people such as those at the centre of this case taking High Court actions to resolve various issues.

The Attorney General and the Office of An t-Árd Chláraitheoir are opposing the action, on grounds including that the surrogate or gestational mother is in law the mother of the child. The High Court has imposed strict reporting conditions in the media in order to protect identities.

Dr Wingfield said that she was a member of the Government-appointed Commission on Assisted Human Reproduction, which made recommendations on several issues, including that of surrogacy.

The commission published a report in 2005. However, several years on, none of the recommendations in the report have been adopted and made law. She said it was “very, very disappointing” that Ireland “was no further on” in the area of assisted reproduction. The whole area here lacked clarity, she added.

It was “tragic” that, due to this absence of legislation, the couple at the centre of the case, and others, have had to take cases to the High Court. This lack of legislation was “not right”, Dr Wingfield said.

Despite this vacuum of regulation, the Merrion Clinic and other IVF clinics which have formed the Irish Fertility Society operate to the standard as recommended in the commission’s report, she said.

Dr Wingfield told the court it was her belief that parentage should lie with the “commissioning couple”. The principal of intent was the primary one. She said that, because of the lack of clarity and legislation, Irish couples seeking surrogacy, or to be implanted with a donor egg, generally had to go abroad.

Earlier, An t-Árd Chláraitheoir — the chief registrar — Kieran Feely, said in his evidence that no written guidelines or policies to deal with surrogate births exists in Ireland.

Under cross-examination by Gerard Durcan, SC for the applications, Mr Feely said the State’s policy was not written in any formal document. He had earlier told the court his predecessor told him in 2004 that, in cases of surrogacy, the name of the birth mother was to be placed on the birth cert.

In the action, the children are seeking declarations, under the Status of Children Act, that their genetic mother is their mother, and that she is entitled to be registered as their mother and have the register of births corrected to reflect their true parentage.

They want the court to order An t-Árd Chláraitheoir to correct the register of births to reflect this. They are also seeking a declaration that the continued failure to recognise the father and genetic mother of the children is unlawful, and fails to vindicate their Constitutional rights.

In the alternative, they seek a declaration that the father and genetic mother are the children’s guardians.

The surrogate mother is supporting the couple’s application, which was refused by the office of An t-Árd Chláraitheoir in 2011, on the ground that there is no legal basis to change the name of the mother on the birth cert from the surrogate mother to the genetic mother.

The case before Mr Justice Henry Abbott continues.

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