Abortion: Not the Only Legislative Vacuum | Sarah Morrissey

Over the last few months there has been intense media scrutiny of the Irish ‘abortion debate’ and the need for legislation as to in what circumstances abortion is permitted. Abortion legislation is now a top political priority; 20 years after the X Case, two years after the A, B and C Case and weeks after the death of Savita Halappanavar. While the public takes to the streets to demonstrate their support for abortion legislation and the politicians debate how to lay down the law as to when one is entitled to end a pregnancy, the UCC Law Society last week took a look at the other side of the coin: the law relating to surrogacy and the legal issues it highlights; the right to have a child and the right to become a parent.

Surrogacy is an arrangement in which a woman carries a baby for another woman or couple. The surrogate mother may be the genetic mother fertilised with the commissioning father’s sperm or she may be fertilised with a donor’s sperm. Similarly, the surrogate may be the genetic mother or the eggs of the commissioning mother may be used. The problem in Irish law is that surrogacy is as unregulated as abortion. In abortion the debate is complicated by article 40.3.3 of the Constitution which asserts that the right to life of the mother and the right to life of the unborn are equal and the subsequent court interpretation of this provision in the X Case. The legal dilemma around surrogacy is similarly compounded by the existing law as all of the law governing the parent/child relationship developed outside the context of surrogacy. Irish law presumes that the woman who gives birth to the child is the child’s mother. This problem is compounded if the surrogate mother is married as in such instances it is presumed that her husband is the father of her child. Together these presumptions operate to hinder the laws ability to recognise the commissioning couple as the child’s parents and in the case of international surrogacy often result in the child being born into legal limbo.

For instance, in the Ukraine, where surrogacy is legal and several Irish couples have travelled for the purposes of having a child, the surrogate mother’s rights to the child are extinguished and the commissioning parents are the recognised parents. However, in Irish law the commissioning couple is not so recognised. This leaves the child effectively stateless as the Ukraine recognises no connection with them, apart from being born on the territory and the Irish authorities requiring proof of parentage (which is extremely difficult if the commissioning couple are not the genetic parents) before granting citizenship. This problem is further exacerbated by the need for a passport or emergency travel certificate in order to bring the child back to Ireland. Such documentation will only be issued subsequent to proof of parentage or proof of a connection with Ireland which brings us back to the initial problem – the failure of Irish law to recognise the commissioning couple as the child’s legal parents. Often the commissioning father has to return to Ireland to jump through the relevant legal hoops in order to obtain the necessary documentation for his wife and child to join him here. Thus surrogacy, particularly in the international context, can be one vicious cycle of obstacles to parenthood.

In the domestic sphere, the child is less likely to be born into legal limbo; however, the commissioning couple remain just as exposed to legal insecurity and uncertainty. As the surrogate will be presumed to be the child’s mother she is free to change her mind in relation to giving the baby to the commissioning couple right up until after the birth. Indeed, in the UK, where they have surrogate legislation, there was a case in which the surrogate mother changed her mind about giving the child to the commissioning couple. The commissioning father was the genetic father and so upon proving parenthood the court recognised him as the father and subsequently decided that pursuant to the best interests of the child test the child should remain with the surrogate mother, though the commissioning couple would have rights of access. It is possible that the same outcome would unfold here, assuming the commissioning father is the genetic father and even if the surrogate mother did consent to giving up her child to the commissioning couple, adoption appears to be the only way in which the surrogate mother’s rights over the child would be legally extinguished.

It is worth noting that in the situations highlighted above it is the commissioning father as the genetic father who has been able to work within the confines of the law to attain some parental rights over the child. The commissioning mother appears to remain in legal limbo under current Irish law with no legal recognition as the child’s mother. According to the Law Society’s panel of experts last week the most effective way of achieving full legal recognition as a parent for the commissioning mother is to adopt the child. This would involve jumping through all the legal hoops associated with adoption having already endured the typically lengthy and complicated process of surrogacy.

These problems raise serious concerns, not least regarding the status of children born through surrogacy but of their parents. Without legal recognition questions arise regarding citizenship, succession rights, benefit allowances and who has the authority to act on behalf of the child. In February 2012, Minister Alan Shatter issued guidance for Irish couples considering having a child through surrogacy. The guidelines lay out how parentage can be established, how citizenship can be established, the prerequisites in order to obtain travel documentation for the child, and how the commissioning parents can go about attaining guardianship of the child. While the guidelines are welcome as a clarification of the law, what they essentially highlight is that there is no law regulating surrogacy directly. In essence the guidelines warn commissioning parents of the legal limbo they are exposing themselves to and no legislation has been forthcoming almost a year later and seven years after the Report from the Commission on Assisted Human Reproduction recommended legislation regulating surrogacy.

Scrutiny of the abortion debate and abortion legislation is important. It is time Ireland confronted the debate that has divided us for more than 20 years. However, Savita Halappanavar’s passing sends a much stronger message than we need abortion legislation – it illustrates that 20 years is too long to put off implementing legislation; it tells us that 20 years is too long avoiding something just because it is controversial; it tells us that the people deserve better than that; that the people need better than that and that the people do have the power to compel political action. The UCC Law Society last week highlighted an area of Irish law in dire need of legislative guidance; without surrogacy legislation parents and children face a legal limbo of which the consequences are as yet unknown as the first generation of Irish surrogate children are only just growing up. Legislation is already over seven years late. Let us learn from the events of recent months and address the vacuum in surrogacy legislation now, before it is too late.