Legislation granting parentage to couples who use surrogacy both in Ireland and abroad is urgently needed to ensure they can be recognised as legal parents, an Oireachtas Committee has heard.
Surrogacy is “entirely unregulated” in Irish law, and this is breaching children’s rights to family life and identity, according to the Special Rapporteur for Child Protection, who spoke to the Committee on Children, Equality, Disability, Integration and Youth.
The issue is affecting straight couples who use surrogacy due to medical or fertility issues, as well as gay couples.
Many choose to go abroad where there is regulated surrogacy, but the route to achieving legal parentage is fraught with difficulties, according to groups representing the couples.
Intending parents who are biologically related to children conceived through surrogacy can apply for parentage in Ireland, but this can take time.
Those who are not biologically related to their children can only apply for guardianship, and this can take up to two years.
Parents who don’t have guardianship cannot consent to medical treatment for their children, take them out of the country without permission from the legal parent, or sign them up for school or a bank account.
Cathy Wheatley from Irish Families Through Surrogacy said couples are terrified that if something happens to the legal parent, either through illness or accident, then their children will be left in legal limbo.
She added that parents without legal parentage or guardianship have no rights to custody, and if the couple split up, they may not be able to see their child again.
Recounting her own experience, Ms Wheatley said her daughter had recently got Covid and had to be hospitalised for pneumonia. Only one parent had been allowed in with her due to infection controls.
“She was very sick... I knew that I could not legally sign for her treatment. I sat in the car, in the car park, and cried my eyes out because I couldn’t be with my baby.”
Gearóid Kenny, director of Equality for Children, said he is still waiting to become a guardian to his six month old daughter.
“I have no rights... you cannot claim guardianship until the child is two. I cannot participate in any of her medical decisions, her vaccinations. I can’t open a savings account for her.”
Even when he becomes a guardian, Mr Kenny feels this is not the same as parentage, as it ends when the child turns 18. “I will dread that day because when the candles are blown on that cake, I will no longer be the guardian of my kids.”
He also worries about how he can leave an inheritance to his children, and whether his children will be able to make medical decisions for him should he become ill or when he is elderly.
Elaine Cohalan, chairperson of Equality for Children which represents LGBTQ parents who conceive children through donor assisted human reproduction and surrogacy, says citizenship is another issue.
If the parent on the birth certificate is not Irish, this means that children born through surrogacy in another country have no entitlement to Irish citizenship, even if one of their intending parents is Irish.
Professor Conor O’Mahony, Special Rapporteur for Child Protection, said that legislation is urgently needed to resolve these issues.
Domestic surrogacy should be legislated for and encouraged, but provisions still need to be made for families who chose to travel abroad, he said.
He said that issues in relation to citizenship and inheritance could be solved with new legislation.
He added that parentage does not confer automatic legal rights to children with regards to caring for elderly or sick parents, and this should be dealt with in the Assisted Decision-Making (Capacity) Act 2015.