Alison O'Reilly: Prospective parents say surrogacy laws leave them out in the cold
Sam Bengtson and her husband Jason Carrig from Dublin have been trying for a baby via surrogacy, using their own genetic material, for four years — to no avail so far.
Almost 20 years after it was first proposed, legislation to regulate domestic and international surrogacy has finally been passed.
The landmark Assisted Human Reproduction Bill provides for and will regulate domestic and international surrogacy, where one parent has a genetic link to the child. There were emotional scenes outside the Dáil last week as families gathered to celebrate the bill’s passage and the long-campaigned for recognition that it brings.
However, not everyone is happy. In particular, future intending parents and same-sex couples say the legislation excludes them and promised amendments must be delivered.
Once President Michael D Higgins signs the bill into law, parents of children born through surrogacy can apply for parental recognition for the first time. The legislation will give retrospective parentage to mothers who have had their baby born by a gestational carrier (surrogate).
Up until now, the biological father of the baby born via surrogate was recognised as the only legal parent here. Second parents, such as the mother or a second father were only entitled to guardianship under Irish law.
However, concerns have been raised by intending parents, in particular same-sex couples, because the legislation requires the surrogate to be habitually resident in the country where the programme has been entered into by both parties.
In non-streamline countries such as Cyprus and Armenia that offer surrogacy, the surrogate is contracted to travel to that destination for the duration of the programme, including the pregnancy and birth, which means that couples going to these countries will not be covered.
Seamus Kearney Martone, chairperson for Irish Gay Dads, told the the new legislation has left them out in the cold: “The LGBTQ community feels profoundly let down by the Government.
“This time [Pride Month], which is meant to celebrate inclusivity and progress, has been marred by policies and actions that fail to protect and support our diverse families.
“Despite years of advocacy and the ongoing fight for equality, the Government’s recent decisions have left many feeling excluded and marginalised.
“This betrayal is particularly poignant now, as we should be celebrating our achievements and looking forward to a more inclusive future.”
Some examples of Irish couples who are not properly provided for by this legislation include those who have children born through surrogacy but were not living in Ireland at the time of the birth.
“Additionally, the ban on commercial surrogacy will affect our community, as it means the USA, one of the most ethical countries for surrogacy, will no longer be an option.”
In addition to those concerns, fears have also been raised for embryo transfers during the interim period — which is the time between the enactment of the bill and the establishment of the regulatory body.
The regulatory body will ensure ethical and legal surrogacies for Irish families and their babies, both here and abroad.
Currently there is no legislation in place for the interim period between now and the regulatory body being established. That means the person who transfers an embryo during that time will have no claim to parentage under the retrospective declaration of parentage.
They will also not be able to claim parentage under the regulatory body because it does not exist yet, however it is due to be established in 2025.
Intending parents are now calling for clarity for this time period.
Sam Bengtson and her husband Jason Carrig from Dublin have been trying for a baby via surrogacy, using their own genetic material, for four years but have not been successful.
Sam fears that if a pregnancy happens prior to clarification of the intending parents’ current position in Irish law, that they will be left in a legal limbo.
“It’s emotionally taxing on us” Sam told the . “We need some details clarified because we are concerned that we are being left behind.
“The concern now is as intending parents, what does the law offer our family? This needs urgent clarification.
“I am delighted for the parents who can claim retrospective parentage, but we also need to be protected.”
Stephen Donnelly, the health minister, has promised to publish supplementary amendments to the current bill which will allow for discretion in these specific areas.
Annette Hickey, solicitor specialising in surrogacy/fertility law, told the : “The minister has brought through the legislation and kept his word and enacted it before the summer recess.
“There has been continual engagement with advocacy groups in order to ensure that the legislation meets with requirements and criteria. There were some amendments that he wasn’t able to put into this legislation, but they will be put into supplementary amended bill which will be published in September.
“He said, the authority is going to be established in early 2025 and that we are the first country internationally to introduce the regulatory authority.
“There is a certain level of worry amongst intending parents, but each application will be made to the authority when it is established on a case-by-case basis.
“I do believe the minister has been listening to the concerns raised by the advocacy groups and is actively working on those concerns.
“There is disappointment there, [it] was such a significant day, we went from having no legislation at all, and that was acknowledged but the issues raised by the same sex couples and other concerns, including when a marriage breaks down. They are in the September bill which must be enacted as soon as possible.
“It is disappointing for intending parents but it is a step in the right direction and a lot of work has to be done.”
There are no statistics for the number of children living in Ireland who have been born via surrogacy. However, once the area is legalised and a regulatory body is established, statistics and registrations here will be available.
Lauragh Goggins and her husband Oisín from Co Wexford have successful gone through the surrogacy process and are hopeful of a second baby.
Lauragh told the : “As an intended parent who is covered by this legislation, I am thrilled that great progress has been made. However, I am heartbroken and devastated for the parents left behind.
“I know the minister had made promises for September but until it’s in black and white signed sealed and delivered to Michael D Higgins, they are just that — promises.”
Ms Goggins already has a son, Christopher, who was born via surrogacy in Ukraine.
The mother of one who has type 1 diabetes was facing several medical challenges if she was to fall pregnant.
Following lengthy medical tests and advice, the couple believed the risks of carrying a baby were “too extreme”.
Baby Christopher arrived in to the world in October 2021, and Lauragh was in the hospital for his birth with their surrogate — who remains part of their family to this day.
However, Oisín is Christopher’s legal parent and Lauragh was only permitted to apply for legal guardianship here after two years.
She is not recognised as the child’s mother in Ireland currently and her mother who has passed away, was also a “legal stranger” to her grandson.
Lauragh told the : “So that means he would have been taxed if she left him anything.”
The change in law means that Lauragh will be able to apply for parentage.
The health minister said that his department is working with the Irish Courts to begin receiving applications as soon as possible.
Mr Donnelly said: “My hope is that we can narrow it down to just a few months.
“I have asked my officials to do everything they can to have the regulatory authority up and running by the end of this year.
“Let us say it will be up and running in January and the Courts Service is able to hear the first cases in September or October, or as soon as possible at any rate. The interim period would be the time between those two dates and further consideration will be given to that in the upcoming bill.”
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