Couples in Ireland who conceived through IVF and surrogacy fear that they may never be legally recognised as their children's parents, due to a gap in legislation.
New laws on the issue were passed in 2020, however, the new law does not encompass all couples, according to campaigners.
- - Gearoid Kenny and his husband Seamus Moore live in Dublin with their twins who were conceived through surrogacy at an IVF clinic in London as Irish fertility clinics felt they could be legally exposed with the use of egg donations
- - Dr Andrea Mulligan, assistant professor at Trinity's law school, says there is no law in Ireland governing surrogacy.
- How the law in Ireland currently stands
This new law, the Children and Families Relationship Act (2015) provided a legal framework for registering the births of children who are born through IVF, where the birth mother is an intending parent.
The act also allows the intending and birth mother to name their spouse, civil partner or cohabitant as the second parent of the child.
However, this law doesn't have any provision for surrogacy, where the woman who gives birth is not the intending parent.
Many people also go abroad to get IVF as it is significantly cheaper, but this new law doesn't recognise their parentage.
The fight is not just a symbolic one.
The parents who are not on their child's birth certificate or who can't get guardianship technically do not have the right to vaccinate their children or take them on a foreign holiday.
A campaign called Equality for Children is trying to bring attention to the issue.
The issue affects straight and lesbian couples who use IVF abroad or use surrogacy abroad and at home.
Gay couples will always be affected, as they will have to use surrogacy in order to have children.
However, because it only affects a minority, it is not seen as a big-ticket election issue, according to campaigners.
Meanwhile, families are left floundering.
Ranae von Meding, head of the Equality for Children campaign, says pre-marriage equality, there was no way gay parents could become the legal parents of children.
"It had to be a mother and father," she said.
However, once marriage equality was gained in 2015, legislation was brought forward to try and rectify the issue.
"They rushed through the Children and Families Relationship Act, which had a very narrow criteria for parental rights.
"They didn't look at surrogacy at all, or conception outside of an Irish fertility clinic."
This bill enabled couples who used an Irish fertility clinic and a traceable sperm donor to be named as parents. It also allowed female same sex couples who undertake reciprocal IVF to became joint legal parents.
"It was a step forward, that bill passed in 2015 but wasn't commenced until May of this year," says Ranae. This meant families were waiting five years for legislation.
Many families fall outside this law, leaving parents in a precarious legal situation.
"If you decide to go to an IVF clinic abroad because it's cheaper, or if your child is born abroad, or if you choose to conceive at home, there is no provision for both parents to become legal parents."
Only traceable sperm donations are accepted under the legislation. In the 90s and early noughties, only anonymous sperm donation was allowed in Ireland, however the converse is now true.
There is a stay in the law, whereby anyone who meets the other criteria but used anonymous sperm donation prior to the bill being commenced can still apply to be legal parents.
However, if people received IVF abroad and/or used an anonymous sperm donation after the bill was enacted, they will not be able to apply for parentage.
Ranae is in this precarious legal situation herself, but is hopeful it will be resolved soon.
She has two children with her wife, Audrey, a four-year-old girl called Ava and a two-year-old called Arya. The children were conceived through reciprocal IVF in a clinic in Spain.
"I'm considered their only legal parent, as I gave birth.
"My wife is actually their biological parent, we used her eggs and donor sperm, and I carried the babies.
They are her biological children but since they were born she's been a legal stranger to them.
Thankfully, Audrey should be able to become a legal parent of their children, under the Children and Families Relationship Act 2015, which passed last May.
They are waiting on a court date in order for Audrey to get a declaration of parentage.
Ranae says they had to fight for five years to get this far.
If I die today, my wife would not have automatic guardianship over the children.
Ranae adds that there are many other parents who don't fall under this new legislation.
There are a few measures these parents can put in place.
"You can apply for emergency guardianship, if your partner is incapacitated or in a coma. The legal parent can also put it in their will that their wish is for the children to stay with their partner, this is called testamentary guardianship."
However, a guardian does not have the same rights as a parent. Ranae says once the child turns 18, the legal relationship is severed, meaning children will not have a say in a parent's end of life care.
Inheritance can also be an issue, as can citizenship, which is as often granted based on the parent's place of birth.
It is also not possible for parents to use adoption as a solution. While gay parents can adopt a child under normal circumstances, they cannot apply to 'adopt' their own children conceived through IVF and a donor egg or sperm, as there is no provision for this under Irish law.
"The Adoption Authority has refused to process these types of adoptions. They don't have the framework.
"In other adoptions, there is a birth family who give up the child for adoption, and an adopted family.
"In our case, we aren't giving up our children for adoption, because we are the birth family. Legislation is needed."
She says children are being discriminated against simply because they have LGBTQ parents, as they have to use some form of IVF.
Ranae also adds that children of straight couples who use IVF abroad or surrogacy are also affected.
Gearoid Kenny and his husband Seamus Moore are in a similarly precarious legal situation. They live in north Dublin with their twins, Mary and Seán, who were conceived through surrogacy at an IVF clinic in London.
The couple had to go to England, as Irish fertility clinics were unwilling to use egg donations as they felt the legislation was not yet in place, and they could be legally exposed.
"Our children were created through an egg donation. A friend of mine from London carried our babies, but has no biological connection to them, and doesn't want to have any parental responsibility."
Seamus is the biological father of both Seán and Mary, and he is their legal guardian due to UK law. Had the twins been born in Ireland, Seamus would only have become their guardian if the surrogate allowed him to, by signing a legal document.
"But guardianship is not the same as parentage," Gearoid says.
Meanwhile, Gearoid has no legal relationship with his children and their surrogate will be held legally responsible for the children if anything happens to Seamus.
Gearoid adds that while there is a narrow group of LGBT people who can be named as parents, this does not include his family, and straight couples who avail of IVF abroad and surrogacy are in the same predicament.
The lack of parental rights does have ramifications, he says.
Technically, you don't have the right to bring the child to the hospital, or bring them to a medical appointment or consent to medical procedures.
When Gearoid's children needed to be vaccinated, only their biological dad could sign the forms and attend the vaccination.
"When the children were born, we were very honest with our doctor and said 'we didn't give birth to them'," Gearoid says.
"We told him very clearly who is the dad. He was very supportive, but there were times when the biological dad had to present for vaccinations.
"Another time, Mary was getting a scan as they were worried she had heart murmur. Thankfully it turned out to be nothing, but we were told the biological father had to be present in the event any procedures had to take place.
"If you travel abroad, it is only the biological parent who can bring the children out of the country legally. If the other parent wants to do that they have to get a signed letter from the biological parent saying they can do this."
Only the biological parent can register the child for school.
Now that the twins are two, Gearoid can apply to become their guardian. The couple are in the process of submitting this application, but he still won't be their legal parent.
"The next thing the Government plans to do is introduce a piece of legislation called the Assisted Human Reproductive Act," Gearoid says. He met with Simon Harris when he was minister for health in relation to advancing this bill.
"He said under the draft legislation, what they will do potentially is allow surrogacy arrangements to be formalised in the future, but not retrospectively."
This means he won't be covered under the new legislation.
Gearoid doesn't think it will become an election issue, as it only affects a small minority of people, so there's not much political will to solve it.
He adds that there is not much trust placed on LGBTQ couples, even for the same sex female couples who can apply for parental rights.
"They must go to court, gather vast amounts of paperwork, documents, get proof from the IVF clinic that they used... there is a certain inherent distrust, maybe even homophobia, at the bureaucratic level."
Seamus, as the biological father of both children, can get a declaration of parentage, as currently he is only their guardian. However, to do this would be quite onerous.
"That costs €15,000, as you have to get a barrister to do it. Also, despite having letters from the IVF clinic saying he was the sperm donor, he would still have to go through another parental test to ensure what he is saying is true, and all of his brothers would be required to submit a sperm sample, to rule out the possibility that they might be the father."
However, despite these legal challenges, Gearoid says having children was one of the best things that ever happened to him. He is a stay at home dad and looks after the kids full-time.
He says other countries can put forward legislation to solve this problem, so Ireland should be able to do the same.
"Really it's about allowing children to have a legal relationship with both their parents. I don't ever see a situation where I am recognised as the legal father to both my children."
Dr Andrea Mulligan, assistant professor at Trinity's law school, says there is no law in Ireland governing surrogacy.
"There was one case on surrogacy, and a written judgment from the supreme court in 2014. There was a really famous statement from Judge Adrian Hardiman.
He said that Irish law and surrogacy was as if the Road Traffic Act didn't reflect the invention of the motorcar.
Dr Mulligan says the only way solicitors can use the law to establish parental rights is when the surrogacy can be fitted into the pre-existing law.
"It's never a law designed for surrogacy."
Currently, genetic fathers whose children are conceived through surrogacy can apply for parentage and then guardianship.
However, Dr Mulligan says the same is not true for genetic mothers who don't carry the child.
Intended mothers, even if there's a genetic connection, have no way of becoming a legal parent.
She says the Children and Family Relationships Act 2015, which was enacted in 2020, covers parentage in donor assisted reproduction in Ireland, which has helped some couples including same sex female couples who undertake reciprocal IVF, but not those who use surrogacy.
Dr Mulligan adds that there was a general scheme of a surrogacy bill published in 2017 (the Assisted Human Reproduction Bill), but it has not been progressed yet.
She says there needs to be more regulation of surrogacy in general. Currently in Ireland, IVF and surrogacy is commercialised and privatised.
Due to how expensive it is, many couples choose to go abroad. However, Dr Mulligan says it would be very difficult for the Irish State to regulate things that happen outside of the country, which is why laws that govern assisted reproduction in Ireland may not address IVF or surrogacy abroad.
"Donors have to be identifiable in Ireland, to vindicate the child's right to identity," she said.
Dr Mulligan says that in other countries, there can be ethical concerns. "There can be exploitation of surrogates, or a situation where the child can never contact the donor, or know anything about their background."
She believes IVF should be available to couples on the public health system, to stop them having to travel abroad in search of more affordable services.
Dr Mulligan also adds that legislation is vital, in order to ensure IVF and surrogacy is properly regulated in Ireland.
"The new law regulating surrogacy proposes the establishment of a new, independent regulatory authority to regulate the industry," she said.
She adds that because the industry in Ireland is largely private, there is a lack of information on how many couples are availing of their services, as well as how many people are going abroad.
In response to this issue, the Department of Health, which governs this area, said in a statement: "The Children and Family Relationships Act 2015 was enacted to modernise family law."
"The Department of Health has responsibility for parts two and three of the Act, which commenced on May 4, 2020. These provisions provide a legal framework for registering the births of children who are born as a result of assisted human reproduction involving donated eggs, sperm, or embryos, and where the birth mother is an intending parent.
"Parts two and three also requires records to be kept in relation to the identity of donors and prohibits the use of anonymous gametes or embryos, subject to some exceptions."
The Department said these provisions apply to heterosexual couples, female same-sex couples, single women and to female same sex couples who undertake reciprocal IVF.
The act also allows the intending and birth mother of a donor-conceived child to name their spouse, civil partner or cohabitant as the second parent of the child, subject to the consent of both parties.
"A parent under this section shall have all parental rights and duties in respect of the child. The donor of a gamete or embryo shall not be a parent of that child and shall have no parental rights or duties."
The Department added that the provisions of the act only apply to donor assisted procedures undertaken in Ireland, and does not encompass surrogacy.
However, another bill, called the Assisted Human Reproduction Bill, is intended to cover more ground.
"The General Scheme of this bill will make provision for non-commercial surrogacy in Ireland, and heterosexual couples, female and male same-sex couples and single people can avail of these arrangements if they meet the criteria set out in the legislation.
"The scheme also sets out a court-based mechanism through which the parentage of a child born through surrogacy may be transferred from the surrogate (and her husband, if applicable) to the intending parent(s)."