Bill marks first step in grappling with surrogacy

All children, irrespective of the method of their conception, have a right to clear rules on parentage so that their family life is acknowledged and cherished equally by the State. For children who have been born through assisted reproduction using donated gametes or surrogacy, this right has been frustrated by the lack of legislation on parentage despite clear recommendations from the Commission on Assisted Human Reproduction in 2005 and numerous judicial decisions urging legislative action.

Last week Minister for Justice Alan Shatter published the general scheme of a new Children and Family Relationships Bill aimed at “creating a legal structure to underpin diverse parenting situations and provide legal clarity on parental rights and duties in diverse family forms”. This is a very welcome development which is long overdue.

The most important issue for families in assisted reproduction, apart from the birth of their healthy child, is to have clarity about their legal situation. In this respect, the underpinning policy of the Bill to ensure that the child will have a clear legal relationship with its parents is laudable and should be strongly supported.

The basic premise of the provisions for dealing with parentage in assisted reproduction is that irrespective of genetic relatedness, the woman who gives birth to a child will be regarded as its legal mother.

Other than in surrogacy, the birth mother’s husband, civil partner or cohabitant is considered to be the other parent of the child if he or she has given valid consent. If there has been either egg or sperm donation involved, the donors will not be regarded as legal parents. This is a sensible policy, in keeping with international practice and consistent with the intention of all parties involved in anonymous donation where the donor has waived parental rights and responsibilities.

Unfortunately however, nothing is said about the child’s right to discover the identity of the donor, which is an important human right worthy of legal protection and which other jurisdictions have enshrined in legislation in recent years.

One provision which may cause some debate relates to posthumous reproduction, as the heads of Bill state that the consent of an intended parent is not valid after their death. This means, for example, that where a man has stored sperm prior to cancer treatment and specifically intends that his partner should be able to use it in the event of his death, his explicit consent and wish to become a father is not respected. Although there are legal and ethical issues involved, posthumous reproduction is permitted in many other jurisdictions if there is clear and unambiguous written consent from the deceased person and subject to time limits in order to facilitate the administration of the deceased person’s estate.

In relation to surrogacy, the heads do not cover traditional surrogacy where the surrogate’s eggs are used, which means that in order to avail of the parentage provisions in the Bill, the intended parents must be able to provide the eggs and sperm or embryos themselves.

In my view, this discriminates against women who may be unable to provide their own eggs. Rather than facilitating surrogacy in such situations by allowing the surrogate to use her own eggs, the couple would have to find an egg donor whose eggs could be fertilised to create the embryo for transfer to the surrogate.

The introduction of a third woman unnecessarily complicates the situation from a medical, ethical and legal point of view and it is difficult to see how it is in the child’s best interests.

The parentage provisions state that where the surrogate consents, an application for parentage can be made by the genetic father and his consenting partner, or the genetic mother and her consenting partner, or the genetic parents. However if the surrogate does not consent, she will be the child’s mother irrespective of genetic non-relatedness.

Therefore, if the surrogate changes her mind and refuses to consent to the declaration of parentage in favour of the genetic parents, she will retain legal parentage and custody of the child and the surrogacy arrangement will not be enforced against her. She can insist on payment of the costs agreed with the intended parents and presumably enforce maintenance payments against the genetic father until the child reaches maturity.

The genetic father may apply for guardianship, which will be decided by the court on the basis of the child’s best interests, but the father’s partner, who may also be the genetic mother of the child, has no such right as the Bill assigns guardianship to the surrogate. This position is not in keeping with the recommendations of the Commission on Assisted Human Reproduction in which the majority took the view that the child should be presumed to be that of the intended parents.

It is important to note that the fundamental premise of the Bill which assigns legal parentage to the birth mother in all circumstances is currently the subject of a Supreme Court appeal brought by the State against an order of the High Court, which held that legal parentage should be accorded to the genetic mother in a gestational surrogacy case.

Another issue relates to the time at which the declaration of parentage will be sought in surrogacy, between 30 days and six months after birth. This means that if the child is in the custody of its intended parents immediately after birth, as would be usual, there is no legal relationship between the child and its custodians.

Any legal responsibility for decision- making in respect of the child, such as consent for medical treatment, remains with the surrogate who is the sole legal guardian until the declaration of parentage is made. This is a position which is not in the child’s best interests and is generally opposed by surrogates who do not consider themselves to be the mother of the child.

Another feature of the proposed Bill is its prohibition of payment in surrogacy, other than what are described as reasonable costs, which may include medical and travel expenses and two months loss of earnings. If the intended parents transgress the payment provisions in the Bill, they may face criminal prosecution and a declaration of parentage will not be granted. This is in effect punishing the child for the sins of its parents and is not in the child’s best interests.

How would a court reconcile these provisions with the requirement to decide the parentage and custody of a child on the basis of its best interests in a situation where its genetic parents, in whose care and custody the child has been since birth, have been refused a declaration of parentage and imprisoned for giving the surrogate a payment which falls outside the rigours of the legislation? This policy conflict has already been highlighted in case law in England and should be reconsidered by the Minister.

The long-overdue attempt to establish clear and consistent rules on parentage for children born through assisted reproduction is welcome but much work still needs to be done to ensure that the provisions of the proposed Bill meet its stated objectives and that there has been an informed and balanced debate on all its policy provisions.
Dr Deirdre Madden is a senior lecturer in law at University College Cork