Calls to review surrogacy rights

By Katie O'Keeffe

“It’s five years since my children were born and I have absolutely no legal connection whatsoever.”

Those were the words of AnnMarie McCarthy who along with her husband David had twins Olivia and David, who were born five years ago in India, through surrogacy.

As of August 2021, surrogacy is not yet legislated in Ireland, so most people who have taken the decision to add to their family via surrogacy have had to travel overseas for the process.

When the families return to Ireland with their new babies the female parent of the baby is not legally recognised as the mother.

The child has been loved and cared for since birth by their Irish mother, however as Irish law only recognises the person who gives birth - the surrogate. The child is not entitled to a legal relationship with their mother.

This means that the Irish mother is not entitled to give consent for medical treatment, is not entitled to maternity leave, and is viewed as a stranger in relation to any gifts or inheritance they may give their child. This discriminates against both the child and the mother.

AnnMarie has a congenital heart defect so is under advice to not carry her own children and was told adoption would likely be refused due to the same health condition however now that her children are here it is probable that due to her health she would still be refused to adopt Olivia and David.

Annmarie’s husband David was granted parentage earlier this year and she is now currently applying for guardianship of the twins, but this does not give her the same status as parentage and only lasts until they turn 18.

“Guardianship at any time can be taken away but a court legal parentage cannot. Once the twins turn 18 guardianship is removed and I will be back to not having any legal connection with them,” she told the Cork Independent.

While waiting for guardianship she cannot sign consent forms for school, which the twins are starting in September, or medical procedures. In the eyes of the State she is a legal stranger.

Irish Families Through Surrogacy was established in 2020 to campaign for children to have the protection and benefits of a legally recognised relationship with both parents. They are campaigning for the recognition and legislation of domestic and international surrogacy and to advocate for retrospective declarations of parentage for mothers of children born through surrogacy arrangements.

They believe the Irish Government must act immediately on recommendations from Professor Conor O’Mahony’s report reviewing Children’s Rights and Surrogacy in Irish Law.

The group is advocating for the Government to amend the proposed assisted human reproduction (AHR) legislation to allow for international and compensated surrogacy which is guided by best practice.

The group also want to introduce pre-authorised surrogacy agreements, prior to conception to ensure parental rights and responsibilities can be transferred at birth from the surrogate mother to the intended parents, allow for the intended mother’s name on an Irish birth certificate, recognise retrospective surrogacy arrangements.

The want to want to be provided with an expedited route to parentage for those who have been caring for their children and are the ‘real parents’ and to grant maternity leave and benefits to all parents of children born through surrogacy.

Irish Families Through Surrogacy has had a lot of contact with the Irish Government to date and they have been insured that legislation for international surrogacy is a top priority for them. The group hopes to continue to engage with the Government when the Dáil returns in September and possible have a round table meeting in the coming weeks with the relevant department ministers.