The High Court
has said that the media can report on a landmark case regarding an
attempt to recognise surrogacy under Irish law.
The genetic parents of two children born to a surrogate mother have taken a case to be recognised as the children's parents on their birth certificates, the Irish Independent reports.
The surrogate mother is supporting the couple's application for declaration of parentage, which is being taken under the Status of Children Act 1987 and the Guardianship of Infants Act 1964.
However the Office of the Attorney General and the Office of the Register of Births, Deaths and Marriages have opposed their bid to be declared the children's parents on their birth certificates.
Surrogacy involves gestating a baby in another woman's womb. The surrogate mother may or may not be the genetic mother as well. A number of Irish couples have used foreign surrogate mothers, usually from India, Ukraine and America.
Presently, in such situations, Irish law recognises the birth mother as the mother for legal purposes. This is the case even if the woman contracting the arrangement with the surrogate mother has donated the egg, and is the biological mother.
The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents.
No action has been taken by successive Governments since. Commissioning fathers must establish paternity and apply for guardianship through the Circut Court.
Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a birth mother (possibly a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the birth mother nor the genetic mother but who raises the child).
Austrian law seeks to ensure that medically assisted procreation takes place similarly to natural procreation, and that the basic principle of civil law, that it is always clear who the mother is, should be maintained by avoiding the possibility that two persons could claim to be the biological mother.
A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.
Last February, Justice Minister Alan Shatter published new guidelines for people who have used surrogate mothers abroad to advise them on their legal rights and how to obtain a passport for the child they bring home.
The guidelines do not consider such ethical issues as whether surrogacy is inherently exploitative or whether motherhood should be ‘split’ between a birth mother and a biological mother (the egg donor).
The guidelines state that, if the mother is married, her husband is presumed to be the father whether or not he is the sperm donor.
The guidelines also state that, under Irish law, family responsibilities cannot be subject to the law of contract and cannot be bought or sold. “The surrogate mother and the child will have a lifelong relationship with each other,” it says.
Yesterday, Mr Justice Henry Abbott issued an order, revising an earlier ruling in which he excluded the media from reporting the case, setting out the terms under which the case may be partially reported.
The papers stated that they did not wish to publish anything that would identify or would tend to identify the parties.
The papers also undertook not to cover the private evidence of the parties.
The Office of the Attorney General had opposed any reporting of the case.