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.

In the present case the High Court had held that maternity should be decided in the same way as paternity using DNA as the determining factor. However, the Supreme Court overturned this ruling taking the view that the birth mother must be registered as the legal mother, with the result that she will be the children’s other legal guardian.

In the eyes of the law therefore, the children are legal strangers to their own genetic mother. This raises concerns about medical decision-making, passport applications, access and custody in the event of separation, and inheritance rights for the children.

The core issue in this case was not about the rights and wrongs of surrogacy — Irish law is silent on whether surrogacy is lawful or unlawful. The question here was who should be registered as the mother under the Civil Registration Act 2004. Ancient Roman law relied upon by the State declared “mater semper certa est” — ie, motherhood is always certain. But Judge Denham said this is not part of Irish law and was just a simple recognition of a fact which existed prior to the modern development of assisted human reproduction. Irish law does not currently provide an answer to this question and Judge Denham said that the law on surrogacy is “quintessentially a matter for the Oireachtas”.

We have been here before. The Supreme Court stated in the Roche case in 2010 that legislation on assisted human reproduction was required. Successive ministers for health have stated that they would bring memoranda to government to seek agreement on the policy options involved in this complex area. Former minister for justice Alan Shatter did provide a framework for enabling declarations of parentage to be made in surrogacy cases under certain conditions in the Children and Family Relationships Bill.

However, these provisions were removed from the revised version of the bill recently published by the current minister, Frances Fitzgerald.

This leaves parents, children, and surrogate mothers in legal limbo while the Government decides how to handle these very difficult and complex policy issues. The Government has had the benefit of the Report of the Commission on Assisted Human Reproduction since 2005 and has not yet acted upon it despite clear statements from the Supreme Court that legislation is required. The failure to introduce legislation exposes families to distress, uncertainty, protracted and expensive litigation and, most importantly, it is contrary to the best interests of children born through surrogacy. In June of this year the European Court of Human Rights stated that given the importance of biological parentage as a component of each individual’s identity, it could not be said to be in the best interests of the child to deprive him or a legal tie of this nature when the biological reality of that tie was established and the child and the parent concerned sought its full recognition.

These are matters of fundamental human rights which must be urgently dealt with by clear and unambiguous statutory provisions in the interests of all involved.

-Dr Deirdre Madden (Medical Law, Company Law) is a senior lecturer in law with research interests and publications primarily in the area of medical law and ethics.

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