Ireland 'should not turn a blind eye to surrogacy'
Child protection expert says State must decide to clear legal minefield or impose an outright ban
The recent landmark High Court decision on surrogacy will not clear the legal minefield in this area of human reproduction, and legislation is urgently required to stop children being left in legal limbo, according to the State's Special Rapporteur on Child Protection.
In an interview with the Sunday Independent, child law expert Geoffrey Shannon said Ireland could not turn a blind eye to surrogacy.
And he says that means an important decision has to be made by this country – whether we make provision for surrogacy in law or make it illegal as it is in many European countries.
While Mr Shannon said that a referendum may not be needed, the people could make their views known through some sort of consultative forum, if the Government saw fit.
"Children should not be left in a legal limbo. A child born through surrogacy could potentially have five individuals involved with it: the surrogate mother, the commissioning mother, the egg donor, the commissioning father and the sperm donor," he said.
Mr Shannon believes the lack of any regulation means children being born by surrogacy could end up stateless.
He said that while the recent High Court case was important, it was not enough to frame how this area was dealt with by the State, and legislation was required.
In that case, the genetic parents of twins born to a surrogate won their case to have the biological mother recognised as the legal mother.
The genetic mother of the twins, who were born to her sister using her embryos, had challenged the refusal of the Chief Registrar to record her name on the birth certificates.
Mr Justice Henry Abbott granted a declaration that the genetic mother in the case is the mother of the twins, and further ruled that the genetic mother and the children are entitled to have this fact recorded on the children's birth certificates.
Importantly, the judge said there was nothing in the Irish legislative context that positively affirmed mater certa semper est, or motherhood is always certain.
He rejected submissions by the State that the pro-life amendment to the Constitution confirmed the birth mother as the legal mother.
The judge said the word "mother" in that article of the Constitution, which related to the existence of the unborn, applied when the foetus was in the womb and not otherwise.
In the wake of the case, Mr Shannon said it was clear that children born as a result of a surrogacy arrangement were vulnerable in terms of their status within the State.
"The failure of the Oireachtas to legislate in this area has resulted in many children being stateless, and we shouldn't forget that fact," he said.
He pointed to the report of the Commission on Assisted Human Reproduction that examined the lack of regulation of assisted human reproduction.
That report recommended that surrogacy should be allowed, subject to regulation, and that any child born through surrogacy should be presumed to be the child of the commissioning couple.
"We need clarity with new legislation. The courts should not be the battleground. This is a matter really for the Oireachtas," said Mr Shannon.