SURROGACY HAS BEEN thrown back under the spotlight following the tragic story of baby ‘Gammy’, a child with Down syndrome, born to surrogate mother in Thailand.

It is claimed that the Australian parents took one child born to the surrogate mother, but left baby Gammy when they were told he had Down syndrome. This has been denied by the parents.

Thai surrogate mother Pattaramon Chanbua, a 21-year-old food vendor, posers with Gammy. Apichart Weerawong Apichart Weerawong

The story highlights yet another complicated angle to surrogacy, a topic that has been mired in controversy in Ireland, least of all, because of the lack of legal clarity surrounding it.

There are no laws governing surrogacy in Ireland.

However, this will all change with the upcoming publication of the Child and Family Relationships Bill.

Supreme Court 

No case highlights the trepidation in confronting this issue more than a seven judge Supreme Court reserving judgement on the State’s appeal against a decision that the genetic parents of twins born to a surrogate are entitled to be registered on their birth certificates as their legal parents. The judgement is reserved, with the legislature reluctant to rule on the matter when it should be the government making the necessary steps.

The case revolves around the legal definition of motherhood. Is the mother the person who has genetic links to the child or the woman who gives birth to the child, with the court hearing from the State that a child cannot have two mothers at the same time.

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Countries such as France, Germany, Italy, Spain, Portugal and Bulgaria have banned all forms of surrogacy, while commercial surrogacy is legal in some US states and countries including India, Ukraine and Russia. Surrogacy takes place in the UK and Ireland, but commercial surrogacy is not permitted.

While the legislation is to be welcomed for finally giving some boundaries, there have been calls for the legislation to deal with the criminal aspect, as in if agreements are made with Irish residents abroad and what the position is if there is a go between person or agency dealing with such an arrangement abroad.

Kathy Irwin from Beauchamps Solicitors said that there is a “varying approach” to surrogacy law around the world.

It seems to be another Irish solution to an Irish problem, whereby we leave it as long as possible until we are forced to legislate for it… Culture plays a huge part and perhaps more needs to be done in terms of the jurisdiction of the law in arrangements made outside of Ireland.

There are two forms of surrogacy. In traditional surrogacy, the surrogate mother’s egg is used, making her the genetic mother, while gestational surrogacy is where the egg is provided by the intended mother or a donor. The egg is fertilised through in vitro fertilisation (IVF) and then placed inside the surrogate mother.

What is a “surrogate” defined as?

Under the proposed legislation a “surrogate” means a woman who gives birth to a child as a result of assisted reproduction if, at the time of the child’s conception, she intended to relinquish that child to:

(i) a person or two persons whose human reproductive material was used in the assisted reproduction or whose human reproductive material was used to create the embryo in the assisted reproduction,
or
(ii) a person referred to in paragraph (i) and the person who is married to or in a civil partnership with or is cohabiting in an intimate and committed relationship with that person, but does not include a woman who gives birth to a child conceived using her own human reproductive material

Therefore, the birth mother, the surrogate, will be the mother of the child born through a surrogacy arrangement until she relinquishes her status and transfers parentage.

The Bill will provide that in a surrogacy case, parentage may be legally assigned by the court on the basis of genetic connection to one of the intending parents and the spouse, civil partner or cohabiting partner of that person, on application by any of the relevant parties.

The consent of any surrogate is essential and she will be the legal mother of the child if she does not consent.

Where the surrogate does not give consent the father, who has given his genetic material to be used, can then apply for guardianship, however, there seems to be no such provision for the partner to do this.

“The law is very much on the side of the birth mother, regardless of whether there are  genetic links,” said Irwin.

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Who will be able to be a surrogate under the proposed legislation?

Interestingly, there is an age restriction on who will be able to become a surrogate mother in Ireland. A woman must be at least 24 years old to become a surrogate and she must also already have had at least one child of which she has custody. The rationale behind this is that a woman should be aware of the emotional and physical effects pregnancy brings with it.

If a birth mother entered into a surrogacy arrangement prior to the commencement of this Act, she will have to have been at least 18 years of age when she entered that arrangement.

Is there an age limit for parents?

While the minimum age for a surrogate is 24, the proposed legislation states that at least one of the couple entering a surrogacy arrangement must be under the age of 45. In light of this, a single person entering into an arrangement, i.e a woman who wants a child but does not have a partner, the maximum age limit she can be is 45 years old.

What about payment?

Commercial surrogacy is not allowed under the proposed new law. A surrogacy mother is entitled to be reimbursed surrogacy costs, but reference is made to “reasonable costs” and no figure is defined, which may prove problematic in ensuring payments relate totally to the costs incurred by the surrogate.

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So what do the “reasonable costs” include?

The reasonable costs associated with the pregnancy or birth include any reasonable medical costs associated with the pregnancy or birth (both pre-natal and post-natal), any reasonable travel or accommodation costs associated with the pregnancy or birth, any reasonable medical costs incurred in respect of a child, the cost of reimbursing the birth mother for a loss of earnings as a result of unpaid leave taken by her, but only for the period of not more than 2 months during which the birth happened or was expected to happen and any other period during the pregnancy when the birth mother was unable to work on medical grounds related to pregnancy or birth.

The proposed legislation prohibits commercial payments to the mother but also to any other person associated with making a surrogacy arrangement. Surrogacy advertisements are also banned.

While the new law is to be welcomed, providing clarity to an ambiguous situation, there have been calls that the legislation should also incorporate the Department of Justice’s Guidance Document on citizenship, parentage and guardianship which deals with the position of children born to surrogates outside of Ireland, where the people engaged in the arrangement are resident in Ireland.

Read: Women who use a surrogate mother have no right to maternity leave, EU rules>

Read: State to appeal ruling in landmark ‘surrogate birth cert’ case>