Whilst it can be suggested that surrogacy is a recent phenomenon it is worth looking at the Bible, Genesis 16.2/4 where it could be said that issues of Surrogacy arose between Abraham’s wife, Sarah and Sarah’s Egyptian handmaiden Hagar! Although it was intended that surrogacy would be dealt with the in the Children and Family Relationships Act 2015 ( enacted on the 6th April 2015 but not yet in force), the Act as enacted includes no reference to the problems of surrogacy.

Former Minister for Justice, Alan Shatter had initially proposed that one part of this Act would address this unregulated problem. In the report of the Commission on Assistant Reproduction (Ireland) it stated that “the use of the human body for surrogacy is ethically indistinguishable from other accepted practices that separate genetic, gestational and social parenting such as donor insemination, adoption and wet nursing. It is also indistinguishable from other practices whereby the human body may be seen as being utilised for profit such as professional athletics and modelling”.

The English case of D&L (minors) (surrogacy) of 2012 states…. “a surrogate mother is not merely a cipher she plays the important role in bringing the child into the world. She is a “natural parent” of the child.

In a previous case of the child of G (Children) the English Courts stated that where recognising the role of the gestational mother, that such a role recognises a deeper truth; that the process of carrying a child and giving him/her birth (which may well be followed by breastfeeding for some months) brings with it, in the vast majority of cases a very special relationship between mother and child, a relationship which is different from any other”.

In Ireland therefore, surrogacy is unregulated although there are Ministerial Guidelines in the context of Immigration from the Department of Justice, Equality and Defence made on the 21st February 2012. In a surrogacy situation, immigration is possible based on the general law arising from the genetic link of the child with its father.

In England and Wales, altruistic surrogacy is legal subject to compliance with legal requirements, commercial surrogacy is illegal. All surrogacy is illegal in France and Spain. In the United States, commercial surrogacy is legal in California, Illinois, Arkansas, Maryland and New Hampshire. Likewise, surrogacy is legal in the Ukraine but the parents must be married. All surrogacy is legal in India since about 2002 but is substantially unregulated. Likewise, surrogacy is unregulated in Thailand although new laws are proposed.

In Ireland, the case of MR & DR .v. the Registrar of Births, Deaths and Marriages (2013) gives an interesting insight and has been referred to as an oasis of in the desert of Irish law on human reproduction. In this case, a married woman with gestational incapacity and her husband are facilitated in having a family by the voluntary agreement of the woman’s sister to act as the gestational mother. The genetic material is entirely that of the married couple and there is no dispute between the Applicants and the surrogate. The legal dispute involved having the intended parent/care giver registered as the mother of the child. The Registrar of Births, Deaths and Marriages refused to register anybody other than the gestational mother (the Applicant’s sister) as the mother of the chid on the birth certificate. The Applicant’s brought a case to the High Court where Judge Abbott stated that in the post IVF era the genetic and the intended de facto mother of the child was in fact the applicant (sister of the gestational mother).

The Supreme Court on the 7th November 2014, on appeal and by a substantial majority held that the law in this matter remained, that the gestational mother was the legal mother until the legislature decides otherwise. The Chief Justice, Judge Susan Deneham was of the opinion that “any law on surrogacy affects the status and rights of persons especially those of the children; creates complex relationships and has a deep, social content. It is, thus, quintessentially a matter for the Oireachtas.”
See further articles to be published on this website in the future regarding the general scheme of the Children and Family Relationships Bill of 2014 as far as surrogacy is concerned which was not enact, surrogacy in Ireland today, the practicalities of foreign commercial surrogacy and what the future holds. The most recent decision in relation to surrogacy is that of Judge O’Malley in the High Court in the June 2015 whereby she determined that the mother of a child as a result of a surrogacy, i.e. the intended parent of the child, was not entitled to Child Benefit under Social Welfare legislation. Further details of this case will be published in due course.

I would like to acknowledge the assistance of Nuala E. Jackson, Barrister at Law in relation to the contents of this article arising from a lecture that she gave at the Family Lawyer’s Association Conference in Galway in May 2015.

Eamonn Fleming