The lack of legal regulation over surrogacy in Ireland is “regrettable” and the country is lagging behind others in the West in failing to properly define motherhood in the case of surrogacy, argues a researcher from the University of Warwick.

Dr Maebh Harding, of the university’s School of Law, made the comments following a landmark ruling by the Irish Supreme Court that the birth certificate of twins born through surrogacy could not be changed to record the genetic mother as their parent.

Research by Dr Harding was cited as part of last week’s judgments. Her work has looked at whether genetic mothers have the right to request to be recognised as legal parents when a child has been born through assisted reproduction, specifically in the context of international adoption.

“If a woman gives birth to a child, there’s no rule in Irish law that says they are automatically the legal parent, which means where surrogacy has been used, genetic mothers should be able to apply to the court for a legal declaration of parentage. My argument is that they should be able to do this under the Status of Children Act 1987 in the same way as genetic fathers. Genetic testing has used for establishing motherhood in Ireland in a number of cases relating to immigration,” she said.

“It’s much clearer in the UK, for example, where if a child is born through surrogacy the gestational mother is initially registered as its parent. The law then allows for the commissioning parents to be recognised as legal parents where one of them has a genetic link to the child. This is done via a parental order made by the court.

“But difficulties arise in Ireland because there is no legal definition of motherhood, despite the country’s entire framework of family law and parental rights being based on the identity of the ‘natural mother’, who has a protected status under Article 40 of the Irish constitution. Should maternity be based on genetics or gestation? Up until the advent of modern reproductive techniques the question simply did not arise.

“Infertile couples have instead relied on ancient legal presumptions of paternity, rather than maternity, to make do. Where donor sperm is used by a married couple to conceive children, the husband is presumed at law to be legal father as long as that presumption remains unchallenged.

“The lack of legislation however has caused confusion and led to problems, particularly when Irish parents travel overseas to make use of surrogacy services in countries like Ukraine or the USA. The surrogate mother is recognised in Irish law as legal mother of the child and as the legal guardian is entitled to custody. Their status as guardian cannot be removed without making an adoption order. It means children born outside of Ireland have no right to Irish nationality unless their genetic father or legal mother is an Irish citizen. Where the child’s link to Irish citizenship lies only through their genetic mother, this can cause difficulties in returning the child to Ireland and risks leaving children parentless and stateless.

“Last week’s ruling concluded with a call for legislation and rightly so. There is now mounting pressure for the state to create a modern definition of motherhood that is so desperately required, before more families are let down by the ‘lacuna’ in law.”

Read Dr Maebh Harding's analysis in full.

Note to Editors:

Dr Maebh Harding is available for interviews. Contact Lee Page, Communications Manager at The University of Warwick. Tel: +44 (0)2476 574 255. Mob: +44 (0)7920 531 221. Email: l.page@warwick.ac.uk.

 

Contact

Lee Page, Communications Manager

Tel: +44 (0)2476 574 255.

Mob: +44 (0)7920 531 221.

Email: l.page@warwick.ac.uk.

Read Dr Maebh Harding's analysis in full here.