Legal limbo fears for surrogate children

Children born of a surrogate mother could find themselves in a legal tug-of-war if proposed laws follow the English model, it has been claimed.

Legal limbo fears for surrogate children

The warning from the Department of Health said it would have drafting of proposed new laws on the subject ready in the first quarter of next year.

It is likely to require at least one of the intending parents in any surrogacy arrangement would have to be genetically related to the child.

Last week, details of a ruling made in the UK revealed how two children had been left in a “legal limbo” after their surrogate mother refused to relinquish her parental status.

The details emerged following a private family court hearing in Canterbury, Kent, outlining how a woman in her 50s offered to be a surrogate for a couple who could not have children due to medical reasons.

It was reported that the woman and her husband had entered into a “consensual altruistic surrogacy arrangement” with the couple.

But the woman believed the couple had not shown sufficient concern for her well-being during the pregnancy.

The relationship then broke down and the woman refused to agree to the couple becoming the children’s “legal parents”.

The judge in the case said the couple could not become the children’s legal parents without the surrogate mother’s consent, and that she now hoped the woman either had a change or heart, or that the law changed.

Drafting has been under way here for some time regarding the area of surrogacy, with indications that elements of the English model — a post-birth parental transfer model — would be incorporated, rather than a pre-birth judicially-approved model.

Dr Brian Tobin, lecturer in the School of Law at NUI Galway, said any model pursued in this country would have to be child-focussed. “I would be quite alarmed by cases like this,” he said, referring to the UK case.

He said while the circumstances of the case were “unusual”, it highlighted shortcomings in UK law which, if transplanted here, would raise questions as to whether or not it was adhering to Article 42A of the Constitution on the rights of the child.

Others to have raised concerns over the lack of clarity on surrogacy include Special Rapporteur on Child Protection, Geoffrey Shannon.

As many as 80 Irish children have been born overseas from surrogacy arrangements between 2011 and 2016.

A spokesperson for the Department said under the surrogacy provisions, it was intended that at least one of the intending parents would have to be genetically related to the child.

More in this section