Wednesday 20 February 2019

Gay man in court bid to be named father of surrogate twins

The man wishes to be recognised as father
The man wishes to be recognised as father

Dearbhail McDonald Legal Editor

A gay man who had twins born through a surrogate mother in India will ask the Irish courts to be legally recognised as the babies' father.

The man, who is an Irish citizen, is the genetic father of twin girls born to a surrogate in India shortly before gay people were banned from entering surrogacy arrangements.

Last year, India, which permits commercial surrogacy -- and is regarded as the world leader in surrogacy-related "fertility tourism" -- introduced laws banning it for homosexuals, unmarried couples and single people.

This week, the Irishman, who is in a relationship, will ask the courts for a declaration of parentage, the first step in securing citizenship for the twins.

His partner is a non-national and has no genetic or legal link to the children.

The latest court action comes weeks ahead of a hearing by a full, seven-judge Supreme Court of a landmark surrogacy action.

It also follows the screening last night of a controversial RTE documentary detailing the experience of an Irish couple in their 50s who also had twins born through a commercial surrogacy clinic in Mumbai, India.

Fiona Whyte and Sean Malone opted to implant three embryos fertilised with Mr Malone's sperm -- and eggs from a separate female donor in India -- into the surrogate's womb to boost their chances of a successful pregnancy.

As a result, the surrogate, who was paid just 20pc of the overall fee, was carrying triplets.


But one of the embryos was subjected to "foetal reduction", or termination, because the clinic does not allow surrogates to carry triplets.

There are no laws regulating surrogacy or IVF treatment in Ireland, rendering many children born by overseas surrogacy as "stateless" pending applications for Irish citizenship by their legal guardians.

But last year the High Court ruled that a genetic mother of twin girls -- born to the woman's sister who acted as surrogate -- could be named as their mother on their birth certificates.

The Government, which has appeared twice before the European Court of Justice in 2013 in relation to surrogacy matters, has appealed the ruling.

The State is separately defending a case brought by a woman who had a child born through a surrogate and was refused maternity leave benefit.

The woman, who cannot be identified by court order, became seriously ill with cancer when pregnant some years ago and had to have an emergency hysterectomy which left her unable to carry a pregnancy.

Because she and her husband still wanted children and are fertile, they later entered into an arrangement with a surrogate who agreed to be implanted with their genetic material fertilised via IVF treatment.

The surrogate gave birth to the couple's daughter in a US state where surrogacy arrangements are lawful and the couple were registered on the child's birth certificate there as her legal and biological parents.

The woman's employer agreed she could avail of maternity leave but, because the employer does not pay maternity leave allowance, she applied to the Department of Social Protection for the State allowance but was refused on grounds she was not eligible.

Irish Independent

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