Pressure on State to pass laws for surrogacy
Fertility clinics welcomed the judgment, saying it would allow them resume offering surrogacy services after a period when childless couples had to take the risky route of travelling to countries such as the US, India, and Ukraine for help.
However, legal experts said the ruling could complicate matters for children born through other types of fertility treatment and said it was essential the Government brought in clear laws regulating the area.
The issue comes at a time when the Coalition is struggling to produce legislation on abortion, and presents another set of legal and ethical issues to resolve. The departments of justice and Social Protection last night said they were considering the judgment.
The High Court ruled the genetic mother of twins can be registered as their legal mother instead of the surrogate who gave birth to them, meaning scores of parents who have used surrogacy services abroad are likely to seek new birth certificates for their children.
It also paves the way for fertility clinics to offer surrogacy as part of their normal services. Some surrogacies have been overseen by clinics here in the past but the legal vacuum acted as a deterrent in recent years.
David Walsh, co-founder of the Sims Clinic, said the clinic would now move to resume services, and he expected others would follow suit.
“We would have 50 to 100 patients who have been waiting for this development. It’s great news for patients. It’s another treatment option for them and it’s one we believe should be available in this country.”
However, the decision to make genetics the main factor in determining the legal mother could have implications for children conceived with donated eggs, raising concerns over what would happen if a dispute arose between a donor and the intended parents.
Adam McAuley, law lecturer at Dublin City University, said detailed legislation was essential. “This ruling deals with one particular situation where all the parties are on the same page but the reality is there are many very varied situations, and how it’s going to apply in other cases, nobody knows.
“The judge has created wriggle room for other cases but ultimately, no judge should be making decisions like this.
“Parliament can legislate for many different scenarios. A judge can only rule on the scenario in front of him and try to leave some wriggle room for all the others that might be affected.”
Solicitor Marion Campbell, who represented the couple at the centre of yesterday’s ruling, said they were delighted with the decision but recognised the legal limbo in which other parents like them remained.
“They would be hoping now that much-needed legislation... will be brought in and that children born by way of surrogacy arrangements will have their rights enshrined in legislation.”
Legislation has been put off despite warnings that existing law lags medical advances by decades. The Commission on Assisted Human Reproduction said laws were needed eight years ago but the recommendations were not acted upon.
