Legal limbo continues for surrogate children

IN A landmark ruling yesterday the Supreme Court decided 6:1 in favour of the State’s appeal against the decision of the High Court to register as legal mother the genetic mother of twins born to her sister in a surrogacy arrangement.

This case is disappointing not only for the family in the case, but also for the many other Irish families who are raising their genetic children born through surrogacy. In this case a woman acted as a surrogate for her sister “as a gesture of love” and there was no dispute between them that the twins should be regarded as the legal children of the genetic parents. There was no intention on the part of the surrogate mother to be anything other than an aunt to the twins. The repercussions of this case are that she is now regarded as the legal mother of the twins, with all the parental responsibilities that this entails. The only solution to rectify this situation is for the children to be adopted by their genetic parents — a process that many parents find objectionable given the full genetic relationship that exists between them and their child.

The picture for other families who have children born through surrogacy is inconsistent. Some have been fortunate in being granted birth certificates abroad naming them as legal parents, but others who have made arrangements abroad have faced obstacles on returning to Ireland. It is possible in many cases for the children’s father to apply for legal guardianship as his genetic relationship to the child is sufficient to give him legal standing to make such an application (albeit that the granting of such an application is not automatic and must be based on a consideration of the best interests of the child in question). However, this does not address the legal relationship between the child and its genetic mother.