While many gay male couples in Ireland have had children using surrogate pregnancies, the current legalities around surrogacy in Ireland are diicult at best. A new bill will aim to iron out the issues, but legal professionals and LGBT+ organisations are raising major issues with its current shape, while for one gay couple the delay with its introduction has proven untenable. Brian Finnegan reports.

Five years ago, Irish couple Dan and Philip* had their twins through surrogacy in England, with a surrogate mother they met through a friend. Their journey towards having children wasn’t a straightforward one. The first attempt, using a known donor, wasn’t successful and, because IVF is so expensive in the UK, they decided to look further afield, eventually settling on a clinic in Cyprus that sourced an anonymous donor. After another failed attempt, their surrogate eventually became pregnant with triplets. One of the children was miscarried, and then twins, a boy and a girl, were born at 33 weeks.

“There were very hard and sad moments, but in the end our journey through the pregnancy itself was amazing,” says Dan. “We never missed a scan, and our surrogate had a brilliant relationship with us. She still sees the kids and keeps in touch; she’s like an auntie to them. She’s not their genetic mother, but we share a good relationship together.”

The family came back to Ireland when the twins were four weeks old, with doctors in England advising them to contact the health system here immediately regarding their little boy, as some abnormalities had been found.

“The first year, our son was very sick and in hospital every month with chest infections,” says Dan. “Eventually we were told that he has a very rare genetic condition called Noonan’s. It means that he has an intellectual disability and that he will need assistance all his life. He’s five now and in pre-school with an SNA and he’s doing good. At least now he’s got a diagnosis and he can get the help he needs.”

When the children were born, the surrogate signed an affidavit in the UK, giving Dan parental rights because he’s the genetic father. Once in Ireland, however, Dan, Philip and their children found themselves in legal limbo.

“When we came back to Ireland there was no legal procedure available to us,” Dan explains. “We had to wait until the 2015 Children and Family Relationship Bill, which brought in a guardianship order, allowing my husband to apply for guardianship of the children.”

My husband is every bit as much a father as me, yet he has to go through the extremely lengthy process of adopting his own children.

We need to sit down with couples who have had experience with surrogacy abroad because nobody is going to know better what’s involved.

LABORIOUS LEGALITIES

Currently for anyone in Ireland having children through surrogacy, whether with a domestic surrogate or internationally, the legislative route to becoming recognised as the child’s legal parents is laborious.

According to solicitor Annette Hickey of Poe Kiely Hogan Lanigan, who specialises in surrogacy, firstly it is essential that the father, or in the case of same-sex couples, one of the fathers is the biological parent.

“The genetic material must come from one of the fathers,” she says. “Then when the child is born we bring an application for a declaration of parentage, guardianship and sole custody before the circuit court or the high court. If it’s an international surrogacy, we have to first apply to the court in Ireland for leave to serve the documentation outside of Ireland.”

Many of the international surrogacy arrangements Hickey and her colleague Geraldine Fahy currently deal with are in the Ukraine and Canada where, as in the UK, commercial surrogacy is prohibited. The surrogate can only be reimbursed for surrogacy/pregnancy related expenses. This obviously makes it a cheaper option, and it’s also philanthropic – the surrogate provides her womb because she wants to help a couple without profiting. Commercial surrogacy is available for Irish same-sex couples in North America, and essentially the legalities, once they are back in Ireland, are the same. However, according to Hickey, an absolutely key element of surrogacy is securing the right legal representation both at home and abroad.

“It is essential that at the start, before you make any commitment or sign any documentation, that your legal representative here in Ireland has made contact with your legal representative abroad,” she says. “They’ve got to work well together and they’ve got to have a very tight relationship, so if there are queries or issues throughout the process they can be addressed and dealt with efficiently.

“In the country of birth there will be a lawyer who is attached to the clinic, and the Irish courts more recently are requiring that the surrogate has an independent lawyer who can swear that she is retained by the surrogate, that she has fully explained the translated Irish Court documents to the surrogate, that she is not aligned to the clinic in any way, that she’s fully informed and aware of the legal procedure in Ireland and the Orders being sought and can give a fully informed consent.”

Hickey also says it’s essential that the legal representative in the country of birth understands that their role doesn’t stop once the baby is brought to Ireland.

“Their role is even more important when the family are back in Ireland because of all the Irish Court documentation that will be served on both the surrogate mother and the lawyer, who will translate the documentation, prepare and swear affidavits required by the Irish Court, seeking her consent at the various stages of the process. They will be served from the parents’ solicitor abroad.”

Documentation is served on the Chief State Solicitor’s office in Ireland who must be satisfied that all of their requirements have been met with for the Court order to be granted.

“Ultimately you come to a date when the Chief State Solicitor’s office is satisfied, and we have all the surrogate’s consents and affidavits filed with the Court, and you go in front of the judge to apply to finalise your application,” Hickey explains.

“Once the judge is satisfied that all the documentation, affidavits and proofs are before her, the surrogate mother has been served, that she clearly understands what’s going on, that she’s giving her fully informed consent, that the Chief State Solicitor’s Office is satisfied, the genetic father then gets the following orders from the court: a declaration of parentage; appointed a guardian; sole custody of the child; and an order dispensing the necessity of involving the surrogate mother in any applications for a passport in the future.

“The solicitor will advise the genetic father to update his will to appoint his partner as guardian of the child, should anything happen to him before the other parent can apply for guardianship two years later.”

THE NON-GENETIC FATHER

For Philip, the non-biological father of the twins, this was a fairly straightforward procedure. “We had to prove that we were together from the start, we had to have reports from the health nurse, from the hospital, from the crèche,” says Dan. “When we went to court the judge was lovely. he hadn’t seen a same-sex couple going through this before, and he was delighted to have us before him.”

However, despite the ease with which Philip gained guardianship of the twins, it leaves the couple in what they see as an untenable predicament considering their son’s health issues.

“My husband is their guardian, not their parent,” Dan explains. “The children have no right to my husband’s estate and he can’t be on their birth certiicate. And when the children turn 18, his guardianship ends, so our son, who will be in need of help all his life, will not have one of his parents as his legal guardian after that.”

According to Hickey, the other option open to the couple is that under the adoption amendment act 2017, the nonbiological father can apply to adopt the child.

"We've been together for 23 years, and we've reared our children together from the start, having gone through the whole surrogacy together," says Dan. "My husband is every bit as much a father as me, yet he has to go through the extremely lengthy process of adopting his own children. In the UK this process is streamlined through the parental order system, which takes six months. Once the AHR bill is passed, which will take who knows how long, the adoption process will take years. Why can't there be another streamlined option, as in the UK? It feels like we are being penalised."

According to Hickey: "In terms of inheritance, legislation in Ireland does not provide for children arising from a surrogacy arrangement at present. Parents having children via surrogacy would have to adopt the child in order to establish a legal relationship with them and in turn benefit from the inheritance tax threshold applicable.

Given their situation, Dan and Philip urgently need to secure their family, particularly to protect their son should one of them pass away. "If I died tomorrow, who is my children's parent?" Dan asks. "My husband's guardianship order does not make him a parent."

THE ASSISTED HUMAN REPRODUCTION BILL

The 2015 Children and Families Relationships (CFR) Act made no provision for surrogacy, but a forthcoming Assisted Human Reproduction (AHR) bill will attemptto iron out an area that has been all but ignored by the Irish government until now.

"The bill is currently at consultation process" says Hickey. "We now have a chance to ensure that when it comes in that it meets the complexities of life."

However, at its current stage, the AHR bill is far from adequate. "The heads of bill limit it to domestic surrogacy in Ireland, so if you have a surrogacy abroad and you come back, you still have to go through the process that we're currently using," says Hickey.

"Sure, where would you find a surrogate in Ireland?" Dan asks. "We looked and researched, and never even came across one. The clinic must be in Ireland too. That's completely wrong. Surrogacy in England is not commercial; surrogates don't get exploited like they do in some other countries. That access should be open to couples in Ireland."

According to Louise O'Reilly, Sinn Fein TD and member of the Joint Committee on Health, which is overseeing the bill, the question of providing for surrogacy abroad should be addressed. "We have to balance that against the concerns for safeguarding against exploitation," she says.

"We can't not cover international surrogacy," says Paula Fagan of LGBT Ireland, who made a submission to the committee for amendments to the bill. "Where there are families that already exist through international surrogacy, those children need legal recognition. Right now the bill is so narrow, it makes it very difficult for people to find surrogacy agreements."

Where there are families that already exist through international surrogacy, those children need legal recognition.

A NEW REGULATORY AUTHORITY

Under the heads of the AHR bill, if you do find a surrogate in Ireland and come up with a surrogacy agreement, it is the treatment clinic (which also must be in Ireland) that submits the agreement to a regulatory authority, who decide whether to authorise the surrogacy agreement or not.

“A priority in considering it is what would be in the best interests of the child,” says Hickey. “If the regulatory authority refuses to authorise the surrogacy agreement, under the bill at the moment the decision can be appealed by the treatment provider rather than the intended parents.

“You have dreamed and decided to do this and you are refused, and if the treatment provider says they are not going to appeal it, what do you do? Walk away?”

While the heads of bill say that people from specific related areas should be on the regulatory authority, there is no stipulation that a member of an LGBT+ organisation should be included.

“We need to make sure that the regulatory authority works for all of the people who are going to be regulated by it,” says O’Reilly. “Whether that means having someone from the LGBT community on the authority or not, I’d be agnostic about that. If there is an alternative mechanism that somehow the views are going to be reflected, that’s something we should look at. It’s a question of finding the right thing to do.”

Traditional surrogacy, where the surrogate mother’s egg is used, is prohibited under the legislation, so a donor egg must be found. The sperm must be from one of the fathers and the embryo transfer must take place in Ireland, which begs the question, can the embryo be created outside of Ireland? The heads of bill do not clarify this.

“The surrogacy agreement sanctioned by the regulatory authority is not enforceable,” says Hickey. “The only bit that is enforceable is the intended parents’ obligation to pay or reimburse the reasonable expenses of the surrogate.

“The scheme says that once the baby is born, the surrogate “shall” consent to the baby living with the intended parents. Between six weeks and six months after the baby is born an application for a parental order must be brought before the courts, and up until the parental order is actually granted, the surrogate can withdraw her consent at any stage.

“After the parental order has been granted then you and your husband are the parents of the child. If the parental order is not granted, you should be entitled to appeal.”

This mirrors the current legislation in the UK, which came into effect in the 1980’s. However, that legislation is currently under review.

“If the UK is reviewing their laws to seek remedies to difficulties they have encountered, surely we here in Ireland should learn from our nearest neighbours and try to ensure that the heads in our scheme are amended to avoid us experiencing the same difficulties,” says Hickey.

Hickey also expresses concern about the current version of the bill prohibiting solicitors in Ireland from giving advice on surrogacy. “It doesn’t provide that if you contravene that prohibition and provide advice it is an offence, so it’s hard to know what the prohibition means,” she says.

According to O’Reilly: “We can’t have solicitors prohibited from giving advice, mean where are people supposed to go? The heads of the bill are drafted and it’s now going to be a case of pre-legislative scrutiny and amendments. some of the amendments may focus on those elements that aren’t practical.”

Paula Fagan is optimistic about amendments to the bill. “There is a lot to play for yet,” she says. “Like ours, a lot of the submissions to the health committee have pointed out the same things. We’re meeting with lawyers to look at gaps and what solutions could be put forward. We may be pushing an open door on some of the issues.”

The Minister for Health, Simon Harris has promised roundtable talks with all of the stakeholders before the bill is finalised, and Louise O’Reilly believes it is imperative that this happens. “The minister said that no couple should be left behind, and to me, that speaks of inclusivity, and that’s really important,” she says. “We need to sit down with couples who have had experience of surrogacy abroad because nobody is going to know better what’s involved.”

Meanwhile, for Dan and Philip, the delays with bringing legislation forward have forced them to make a hard decision.

“We’re moving to the UK because we cannot live in a country where we are not recognised in the same way as every other family,” says Dan. “We don’t want to move. We don’t want to take our child away from the healthcare he has here, but we have to. We have to move to another country because our government can’t provide our family with the protection it needs.”

Louise O’Reilly has met with other same-sex couples who may move abroad because the recognition is easier. “What that tells me is that we need to move to make the recognition easier here,” she says. “Families deserve protection, it doesn’t matter how the family is made up. It is really sad that this couple feels that they won’t be protected and that they feel the change and political will is not there to protect them.”

Poe Kiely Hogan Lanigan Solicitors invite you to attend an event called ‘Surrogacy in Ireland: All You Need to Know’ at Kilashee House Hotel in Naas, Co. Kildare on Saturday October 13, from 9.30am to 1pm. Annette Hickey and Ger Fahy will be on hand to provide advice, guidance and answer any questions you may have. To register your attendance, email: gfahy@pkhl.ie

*These names have been changed to protect identities