Sharon O’Shea and Catherine O’Donnell (right) with Lucy, 8, in Ardara, Co Donegal. Picture: Joe Dunne
The announcement that the Government is to look at international surrogacy is welcome for hundreds of Irish parents.
A fresh examination of the issue could give legal status to children born through foreign surrogacy arrangements that the currently proposed legislation doesn’t give.
With many surrogacy arrangements for Irish couples and individuals currently done abroad, the lack of surrogacy legislation in Ireland presents a huge problem for hundreds of Irish children and their parents.
Genetic fathers of children born through surrogacy currently have more rights than the child’s intended mother or — in the case of same-sex couples — intended second parent.
As a result, intended parents of children born through surrogacy spend years fighting through the courts for the same basic parenting rights that other parents in Ireland take for granted.
The current situation means, for example, that until the intended mother or intended second parent is given guardianship rights, they can’t give consent for their child to go on a school trip, open a bank account for them, or even apply for their first passport.
In a more contemporary scenario, they can’t give their consent for their children to be vaccinated.
And they also cannot stay with their children overnight if they have to be treated in hospital.
But even with legal guardianship of a child, this expires when a child reaches 18 and the child would then have no legal standing when it comes to making important health decisions for their parents.
And if their mother or second parent dies, they would have the same legal status to their parent’s estate as — in effect — a complete stranger.
It is little wonder, then, that the announcement earlier this month that a Special Joint Oireachtas Committee is being set up to examine international surrogacy has been welcomed.
Irish Families Through Surrogacy said they not only welcomed it but they were “encouraged” that international surrogacy will be examined in this open forum.
“The Oireachtas committee will give the opportunity for clarity to be given on the complex issue of international surrogacy and will outline legislation proposals for surrogacy that will protect the child, the surrogate and the intended parents,” said spokesperson Sara Byrne.
She welcomed the opportunity for her group to share its members’ experiences and “to secure our children’s future, one which is free of discrimination, legal uncertainty, and inequality.”
Sara, who has cystic fibrosis and underwent a lung transplant, was advised not to carry a child.
Instead, she and her husband Pádraig went down the surrogacy route and are now parents to their daughter Alice, who was born in 2019 to a surrogate mother in Ukraine.
“The moment our daughter was born, I became a mother and it has been the greatest joy of my life,” Sara said.
“To land in Dublin Airport and immediately become a legal stranger to my daughter was a hugely distressing moment.”
Now that Alice is two years of age, Sara is in the process of becoming her guardian, which will relieve everyday stresses around medical treatment and being able to attend appointments. However, she says, that’s not enough.
“I am her mother, not her guardian. Our relationship will not end when she turns 18 but, as it stands, our legal relationship will end.
“She will return to having just one legal parent in the eyes of Irish law.”
Sara believes this is not right.
“She deserves to be treated equally to every other Irish citizen and have a legal relationship with both of her parents throughout her life.”
While domestic surrogacy arrangements happen occasionally, they are not an option for everybody, so many who want to become parents must opt for a foreign surrogacy arrangement, costing on average around €50,000.
In general, the majority of the money is paid to the surrogate, and some of that money covers the cost of their independent legal advice.
Then costs that also need to be covered include the clinic that does the IVF procedure, the doctors and other staff involved along the way, as well as admin and the intended parents’ or parent’s own legal fees.
In some extreme cases, costs can rocket.
An American agency, which is currently advertising for Irish couples, charges up to €176,000 for its services.
In one agency in eastern Europe, for example, the Irish Examiner saw prices quoted of up to €150,000. For this price, the baby would be born in America and be entitled to a US passport.
Irish Families Through Surrogacy say they are not aware of this clinic but advise that if a clinic is based in one country and the surrogate gives birth in another country “this is something Irish solicitors would advise to avoid”.
The clinic also offers a process open to anybody — not just couples or individuals who go for surrogacy — who goes down the IVF path that prevents “all clinically significant single gene disorders” including “cancer disposition” and cystic fibrosis.
After you find an agency, or find your own would-be surrogate, and you find a reputable clinic, then begins the In vitro fertilization (IVF) process in which fertilised eggs, either from the “intended” mother, or a donor, are transferred to the “gestational” mother.
It is estimated that 70% of children born through surrogacy are conceived with donor eggs through IVF, meaning the intended mother is not the genetic mother.
Couples or individuals who embark on surrogacy are known as “intended” or “commissioning” parents, while the surrogate mother is referred to as the “gestational carrier”.
Sara Byrne said: “Our children are Irish citizens and deserve to be afforded the same provisions as every child in Ireland and have a legal relationship with both parents.
“At the moment, Irish children are being left in legal limbo as they can often wait years to be granted parental rights to one parent before guardianship proceedings can even take place for their second parent.
“This is unacceptable.
“We call on the Government to urgently enact legislation to protect our children.
“We call on the committee to remedy the legal limbo that hundreds of Irish children live in everyday — and to secure our children’s future, one which is free of discrimination, legal uncertainty, and inequality.”
‘I made a promise to my sister that if I was ever lucky enough to have children, myself, whoever I would marry, and if I could carry a baby for her, it’s one thing I would be doing’
Sharon O’Shea is, among other things, very matter of fact.
Confident in what she says and how she says it, she is also straight down the line.
And she just doesn’t come across as the sort to share emotions in public.
But get the 49-year-old mother-of-two talking about her younger sister Marie and you can tell she is hovering on an emotional cliff edge.
There are times when it sounds as if she is either wrestling with a lump in her throat and fighting back tears, or in the silence, she has stopped talking, she has been crying.
And yet, when she first suggested she would carry sister Marie’s child for her, she never once imagined she would feel so sorry for her.
“Don’t get me wrong,” she says.
“I am so happy for her that she now has a daughter and I am so happy that I was able to play a role in making that happen.
“But it just breaks my heart to know that, in the eyes of the State, she is not recognised as her daughter’s mother.”
When she suggested carrying a child for Marie, her sister was just 16 and had just found out she would never be able to carry children.
And when, years later, Sharon met the man she would marry, she told him about the promise she made all those years earlier.
It was her answer when he got down on bended knee and proposed to her.
So, not your conventional answer then.
“When my husband asked me to marry him, the first words that came out of my mouth was, Well, God, yeah, I’d love to marry you,” Sharon, who lives in Ardara, Co Donegal, recalled laughing.
“But I said to him that I made a promise to my sister that if I was ever lucky enough to have children, myself, whoever I would marry, and if I could carry a baby for her, it’s one thing I would be doing.
“Patrick said, ‘Oh, Sharon, what are you not like? You’re always wanting to do something for somebody else?’
“And he said, ‘Sure, we’ll cross that bridge when we come to it’.
“And that’s exactly what was said.”
Her husband was fine about it at the time, and he remained the same when the time actually came.
But it was a different thing entirely explaining the situation to her two children, Amie, 8, and Thomas, 9, at the time.
“To be very honest, I didn’t go into using the mainstream words of saying things and this is very truthful, maybe heartfelt,” she said.
“So then what we would have said was that Marie was sick as a baby and she could not have a wee baby herself.
“And I asked: ‘Is it okay, if I offer to carry her baby, you know, in my tummy?’
“Amie was like ‘Sure, you would have to help out’.
“Because Thomas and Amie were not old enough to know the proper information, I would have also said to them afterward ‘it was like putting a wee chicken into an oven dish’.
“And I said I put it into the oven and then I cooked it for nine months and I just said I babysat that wee baby’.
“And that is how I had to explain them at the time.
“They were so young, they didn’t understand IVF.
“So I had to keep it very simple and they understood.”
Something that screams out for an answer is: how do you carry a child and not be affected emotionally during pregnancy enough to form a deep, deep connection with them over those nine months and then not to want to keep that child when you give birth to them.
Sharon is not phased at all by the question.
Before she embarked on the surrogacy journey for her sister, she was advised to seek some form of counselling — to just make sure she was aware of what she was doing and what could happen.
Although it is very, very rare that surrogate mothers change their minds, it does happen.
Changed their minds
Research in the US by Los Angeles-based assisted reproductive technology (ART) law specialist Andrew Vorzimer, for example, showed that of over 148,000 surrogate deliveries since 1979, 38 surrogates changed their minds.
In addition, 89 intended parents changed their minds about wanting a surrogate child.
The stats expose the potential legal landmines couples and individuals who go down the surrogacy route can face, albeit very rarely.
But while Marie was hardly ever likely to end up being hit by such emotional and legal shrapnel, someone was prudent enough to suggest an independent voice be brought in to make sure Sharon had examined everything from a variety of angles.
They needn’t have worried, though.
“I did go to speak to a lady one day about it,” Sharon recalled.
“And she said ‘You seem to know more in your head about the whole situation than I can even speak to you about’.
“In my eyes, it was very straightforward.
“And for the process to work medically, my system was — in effect — shut down and little embryos created by Marie and John were implanted into me via a treatment that was done in a clinical setting in a hospital in the Czech Republic.
“The most emotional thing I did at the time was hold hands with Marie and pray to God that it would work.
“And that’s literally my journey with Lucy.
“And the miracle that she is today is the journey that actually worked.”
As far as her own feelings towards Lucy, she says straight away: “She’s my niece like my other nieces.
“And she has never been counted as a family member other than as a niece.
“I’ve carried my own children, two of them, and we are very lucky to have had them.
“But when Lucy was being carried by me, that was a different feeling.
“I would tell myself, ‘she is not my little baby, this is my sister’s child’.
“All I wanted was to love and care and nourish and look after that wee baby while I was babysitting her and that’s how I dealt with it.
“I don’t know, was it my mindset? To me, there was something separating me from the feelings you would normally have.
She adds: “I was very ‘neat’ when I was pregnant with Lucy.
“To look at me, you would never know that I was expecting.
“And at nighttime, however, I would explode to be twice the size of the person that I was.
“I used to be convinced she was snuggling away during the day, and there were times that would ask myself ‘oh my God, is this baby okay’ because she was the quietest baby ever.
“Where my own kids were concerned, you would be gently caressing your tummy.
“And it was a different feeling.
“I never felt the need to do that other than to protect.
“To be fair in all of this, people would say to me God, that’s an amazing thing that you have done and all the rest.
“But to me, Marie was the amazing person in all of this. I did this for my sister.
“Like if that wee baby nearly moved, I would have loved my sister to feel that feeling.
“She was never going to feel that feeling, so I’m nearly convinced Lucy nearly didn’t move deliberately.
“I think there was maybe one time in the whole pregnancy I may have said to Marie ‘God, she’s moving a wee bit now, do you want to rub my tummy?’.
“It just never seemed to happen.
“She was the most peaceful and restful wee baby.
“I can’t explain it myself now that I think about it.
“I never really knew Lucy was there until the time she was coming to be born, to be honest.”
And while she can appear to be very matter-of-fact about it all, it is what she sees her sister Marie having to go through since Lucy that gets to Sharon.
“What I find hard is I see Thomas and Amie call me ‘mammy’ and I see Lucy come in and call Marie ‘mammy’ like any other child would.
“But then I am watching my sister, who fought so hard to get her little girl today, if Marie goes to the school gate, and there’s forms to be signed, she’s not recognised as Lucy’s mammy.
“It’s just very hard.
“If she had to go to hospital, think about it, the first thing a wee girl will do is ask: ‘Where’s my Mammy?
Not legally allowed
“And yet Marie is not legally allowed to sort anything to do with paperwork for Lucy and neither will Lucy be able to the same after she is 18 to help Marie if she ever needed — God forbid — help if she was sick in hospital or in a home as she got older.
“It’s a very hard situation to be in.” Sharon falls silent, and gets very emotional when she is asked about what it was like at her local Office of the Registrar of Births.
“I was signing it,” she says of the moment she was signing Lucy’s birth cert.
“And then I looked up.
“One minute you think you’re doing what’s so right.
“And then the next minute you look at her (Marie) and you realise this is her name that should be on this piece of paper.
“Not me. I’m not Lucy’s mammy. I don’t belong to Lucy. I literally babysat Lucy.” More silence. Was it emotional? Did she cry?
“Oh, can I tell you?,” she says. “We were all crying.
“It wasn’t an easy journey back to her house afterward.
“We went out to her utility area and we hugged like we never hugged before and we cried like we never cried.” Sharon falls quiet again.
Seconds at the end of the line turn to minutes. Eventually, she returns to the call.
“But it was another day on a journey that was going to be different anyway,” she says.
“A piece of paper doesn’t determine mammy.
“But in the eyes of the law and for the legality side of things, that’s where the problem is. Yeah.” Someone else in the family who has also gone through an emotional journey with Marie is her 37-year-old younger sister Catherine O’Donnell, a former hairdresser who is embarking on a career as a carer.
Five years after Sharon gave birth to Lucy, mother-of-two at the time Catherine contacted Marie out of the blue and offered to carry a sister or brother for Lucy.
She had discussed it with her 36-year-old husband Pauric, a secondary school teacher, and he thought it was a great idea and fully supported her decision to go ahead and do it.
A shocked and grateful Marie broke down in tears instantly and said yes.
“It was after I had Katie, my second daughter,” said Catherine.
“It would not have been straight away after Lucy was born because to me Lucy is their pride and joy and always will be naturally, when there’s not a second coming along.
“But to me, it didn’t really arise in my head the possibility of even me suggesting such a thing until I probably had my own second child.
“And I just saw, you know, they’re sisters and I saw the closeness between them like we have been as sisters ourselves.
“Marie never in her wildest dreams ever would have ever asked me because never would she ever have even asked Sharon, it’s just that it was suggested.
“So it only really struck me when I was with Marie in Lucy’s bedroom one day.
“She was emotional that day and she was just talking about putting away playpens and cots and wondering, could she find a good home even though she was kind of sentimental and obviously she’d like to keep some of the bits and pieces for Lucy.
“I wouldn’t have said anything that particular day.
“Although I didn’t say anything, something just kicked in with me that day and I just felt I actually needed to offer to carry a child for Marie.
“I was saying to myself that I’d had the choice and thankfully fell pregnant very easy to have two children without any problems and without anybody having to offer to assist me.
“She was shell shocked because she definitely didn’t see that coming when I offered, casually.
“I told her I had discussed it with Pauric and she just gave me a big hug and burst into tears.”
Very soon after she offered to carry for Marie, Catherine then followed in her older sister Sharon’s footsteps on the surrogacy path, going back and forth to the clinic in Dublin and then over to Prague.
Sadly, both attempts did not work out.
“The first time, it was literally within two weeks,” she said.
“In my eyes, I wasn’t really pregnant but when we did a test, it was then we realised that that wasn’t actually working out.
“And then the second time around, we were eight weeks and there was such a good possibility of things working.
“But again, it didn’t.”
She coped with both situations by having already prepared herself psychologically beforehand.
She said: “I was very much like Sharon because I had seen her go through it.
“I made sure that I was equally detached.
“I know a gut feeling the second time around, that it wasn’t going to be good.”
She rang Marie, told her how she felt, and that there was a chance that this wasn’t going to work out either.
Marie drove to their home in Ardara and took Catherine to the hospital.
It was a day of mixed emotions for the two of them.
On one hand, while she was so happy to have at least tried to help her sister, Catherine was gutted that she had not been able to give Marie a second child.
And Marie, while so overwhelmed by the generosity of both her sisters towards her, she knew this had been her last chance to have another child.
“I just can’t imagine having to go through all that she’s gone through herself,” Catherine says.
“I knew I had nothing to worry about myself because I’m a very strong-willed kind of person, maybe not as emotional as either Sharon or Marie.
“I’m just a wee bit different that way.
“Don’t get me wrong, I can cry for Ireland, and yet there are times when I just hold myself together and detach myself from my emotions.
“Maybe that is a coping mechanism, I don’t know but it works for me, and helps me get through certain things in life.”
As to Marie’s battle not just to be a mother, but to now have to fight for her legal rights, Catherine is as unequivocal as Sharon.
“I think in this day and age, it is a disgrace,” she says.
“And I probably don’t even know the extent of all that Marie is going through.
“It’s hard, you know? And what she and John are going through is just something parents shouldn’t have to go through.”
She says the whole process really opened her eyes to what some women have to go through to become a mother.
“You go through IVF and scans and checkups and everything is so intrusive on your personal life,” she said.
“Unfortunately Marie was the one watching us potentially embarking on carrying a child for her.
“And I’m sure her heart was breaking for the fact that she wasn’t able to do this herself.
“Surrogacy is not a choice, it is a must for some woman to have their own child.
“Do you know what I mean?”
Why is surrogacy an issue now?
It is being talked about now because planned surrogacy legislation does not include a reference to foreign surrogacy arrangements.
As an issue, however, the call for surrogacy legislation started to be made in the late 1980s, so it is astonishing that it has taken over 30 years to get this far.
In recent times, however, a key move towards legislating for surrogacy was
the Commission on Assisted Human Reproduction.
It was established in March 2000 by Micheál Martin during his tenure as the health minister.
He advised them that they would be expected to consult widely among members of the public, service providers, consumers as well as “philosophical and theological experts” and relevant people in Northern Ireland and in the UK.
“I am of the view that given the difficult nature of the issues to be examined, the Commission would need at least a year to report,” he told the Commission Chair, Professor Dervilla Donnelly, in a March 2000 letter.
“The establishment of the Commission is an essential first step before any policy proposals are brought forward.
“It will serve two purposes: provide the medical, scientific and legal expertise necessary for a detailed examination of the possible approaches.
“(And) the publication of its report will provide the basis for informed public debate before the finalisation of any policy proposals.”
The Commission — after five years, in April 2005 — concluded in its 187-page report that surrogacy should be permitted subject to regulation by a regulatory authority.
And, importantly, the majority of the 25 members of the commission also considered the child born through surrogacy “should be presumed to be the child of the commissioning couple”.
Out of their 40 recommendations on the whole area of assisted human reproduction, these were the first and fourth of the four recommendations they made that applied solely to surrogacy.
There other two were that women who decide to participate as surrogate mothers should be entitled to receive reimbursement of expenses directly related to such participation.
They also recommended that the child born through surrogacy, on reaching maturity, should be entitled to access the identity of the surrogate mother and, where relevant, the genetic parents.
In their report, the commission — which was made up of eminent academics, renowned medical consultants, and senior Department of Health civil servants — also recruited a market research company to survey 1,003 people on attitudes to assisted human reproduction (AHR).
Some 45% of respondents believed surrogacy should be allowed in Ireland, with 34% of respondents opposed to the suggestion.
This was almost identical to the proportion of support for the involvement of donors in AHR. Again, 45% were in favour of donor involvement in AHR, but slightly more were opposed to it, with 35% saying they were opposed to Donor Assisted Human Reproduction (DAHR).
Nearly a decade later — on February 17, 2015, the Government approved the drafting of a General Scheme of a Bill for AHR and associated research.
High Court case
Before that report was published, the issue of surrogacy very nearly became established in law in a celebrated case.
In 2013, there was the R Case in the High Court, which is almost identical to the McPhilemy family case.
The R Family case involved a married couple, CR and OR.
The gestational or birth mother was CR’s sister, as CR had been unable to give birth “in the normal way”, the court heard.
The court noted there was no dispute between the genetic parents CR and OR and CR’s sister as to how they wanted the twins to be treated “in fact and in law”.
However, in his summing up on March 5, 2013, Mr. Justice Henry Abbott said: “The difficulty arises because the State authorities take the view that as a matter of law the person who must be treated as the mother of the twins is the gestational mother.”
And he said the input of a gestational mother to an embryo and foetus not containing genetic material from her “is to be respected and treated with the care and prudence which the best medical practice dictates”.
But he added: “The predominant determinism of the genetic material in the cells of the foetus permits a fair comparison with the law and standards for the determination of paternity.
“It would be invidious, irrational, and unfair to do otherwise.”
He also said: “The surrogacy contract and arrangements leading to the birth of a child do not lead to any wrong, whether of a criminal or civil nature in this jurisdiction.
“The only weakness of the surrogacy contract in the Irish legislative context (is) that its performance would not be enforceable by any court.
“There is nothing in the Irish legislative context that makes illegal any surrogacy contract.”
However, the State appealed against his decision to allow — among other things — CR to be declared as the twins MR and DR’s mother.
Regulation of practices
A few years later, in October 2017, the General Scheme of the Assisted Human Reproduction Bill 2017 was approved by the Government.
The purpose of the Bill is to provide for the regulation of a range of practices, including surrogacy.
Provisions it proposes include a requirement for all surrogacy agreements should have to be pre-authorised by a new regulatory authority.
The General Scheme also sees a role for a court-based mechanism through which the parentage of a child born through surrogacy may be transferred from the surrogate to the intended parents or parent.
And for the purposes of the proposed bill, it defines a “surrogate” mother as being a woman who carries a pregnancy “in pursuance of a surrogacy agreement” and “who is the legal mother of any child born under a surrogacy agreement”.
In addition, a surrogacy agreement will — at the moment — only be permitted and legislated for if it is a domestic surrogacy, gestational, non-commercial and the surrogacy agreement has been approved in advance of treatment by a proposed new regulatory authority.
A woman will be able to act as a surrogate as part of a surrogacy agreement only if she is habitually resident in Ireland, has previously given birth to a child, is between 25 and 47 years old, and has been assessed and approved as a suitable surrogate by a registered medical practitioner and also by a counsellor.
Each intending parent will have to be aged between 21 and 47 and each surrogacy agreement must involve an intending parent habitually resident in Ireland.
It must also involve an embryo created using either eggs or sperm from an intending parent, and the regulatory authority has to approve their surrogacy arrangement.
Commercial surrogacy agreements are prohibited under the currently proposed legislation.
And a surrogacy agreement will not be an enforceable contract, except in relation to the payment of the surrogate’s reasonable expenses, and then only if the agreement was made before the surrogate became pregnant.
The contents of the general scheme have dismayed people, especially after so much discussion about the issues.
A key piece of work was the Review of Children’s Rights and Best Interests in the Context of Donor- Assisted Human Reproduction and Surrogacy in Irish Law.
Carried out by Special Rapporteur Professor Conor O’Mahony and published in December 2020, it made a number of recommendations.
These included one that the Oireachtas should enact comprehensive legislation regulating surrogacy “at the earliest opportunity”.
The Oireachtas should also, he recommended, amend the Children and Family Relationships Act 2015 to address a number of anomalies arising in respect of the recognition of family relationships in cases where children were born following Donor Assisted Human Reproduction (DAHR) procedures.
The Oireachtas should enact comprehensive legislation regulating surrogacy at the earliest opportunity.
Surrogacy legislation should, he said, make provision for the recognition of both domestic and international surrogacy arrangements.
It should also “incentivise reliance on domestic arrangements by adopting a more streamlined and less burdensome framework” than for international arrangements.
And he said that provision should be made for “a pathway to parentage in respect of surrogacy arrangements which occurred before the commencement of the new legislation”.
What does the law say about surrogacy?
Under Irish law, the woman who gives birth to a child is the legal mother of the child.
Guidance from the Department of Foreign Affairs and the Department of Justice says, family relationships — and the rights and responsibilities that flow from them — “cannot be subjected to the ordinary law of contract and cannot, in particular, be transferred to another person, bought, or sold”.
The guidance is contained in both departments’ guidance to couples and individuals on “citizenship, parentage, guardianship and travel document issues” in relation to children born as a result of foreign surrogacies.
Tellingly, the same guidance stresses: “In this document, expressions such as ‘surrogate mother’ or ‘commissioning adults’ have been used for the sake of clarity and simplicity.
“But this does not mean that the Irish authorities consider that these expressions have any legal standing.”
If the surrogate mother is married, then under section 46 of the Status of Children Act 1987, the surrogate mother’s husband is presumed by law to be the father of the child, unless the contrary is proved on DNA evidence.
If the DNA evidence proves the intended or commissioning father is the genetic father of the child, it is possible to overcome the presumption of paternity in favour of the surrogate mother’s husband, That DNA evidence can then be relied upon by the intended father in applying to a court for a Declaration of Parentage under the Status of Children Act 1987.
The commissioning father will need to provide evidence of paternity by means of a DNA test and a sworn affidavit from the DNA tester/doctor in support of this application as well as a sampler statement.
Regardless of whether or not the surrogate mother is married, the intended father must provide evidence of his DNA by means of a DNA test.
The intended or commissioning mother, however, regardless of whether she is the genetic mother, cannot currently get a declaration of parentage in her favour.
She can, however, apply for guardianship, but only with the genetic father’s permission after two years, and that expires when the child is 18.
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