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Thursday, October 15, 2015

Future of surrogacy legislation

The government has committed to introduce legislation on assisted human reproduction, surrogacy and gamete donation following a November 2014 Supreme Court decision on surrogacy. The Supreme Court ruled that a genetic mother of twins born to a surrogate is not entitled to be registered as their legal mother on the birth certificates.

The case had been appealed by the state from a March 5 2013 High Court decision, in which the High Court ruled that the genetic mother of twins born to a surrogate was entitled to be recognised as their legal mother. The High Court found that motherhood is based on genetic links. The chief registrar of births, deaths and marriages had originally refused to enter the genetic mother's details on the birth certificates of twins born to a surrogate.

In the Supreme Court appeal, the state argued that the High Court decision had 'massive' implications that would affect mothers who bore children using donated eggs, regarding the children's citizenship and succession rights.

The Supreme Court decided by a six-to-one majority to allow the appeal. A variety of approaches were taken by the judges as to how they reached their conclusions. However, a common theme through all seven judgments was the observation that this area lacks legislation. Chief Justice Denham acknowledged that there was a lacuna in the law, which had arisen from radical developments in assisted human reproduction. The Supreme Court signalled clearly that it is for the Oireachtas to determine policy and introduce legislation in this area.

In the aftermath of the Supreme Court decision, the government committed to introduce legislation on assisted human reproduction, surrogacy and gamete donation and the cabinet has now authorised the Department of Health to prepare this legislation. The department will draft the heads of the bill before inviting submissions from interested parties as part of a public consultation process. The Oireachtas Joint Committee on Health and Children will also be invited to hold public hearings on the matter and subject the draft to scrutiny. The draft will include proposals for a regulator to promote patient safety and good clinical practice in assisted human reproduction.

The urgent need for legislation was demonstrated in a recent High Court decision where a woman – whose child was born through a surrogacy arrangement – lost her legal challenge over a refusal to pay her maternity benefits. She claimed that the state's refusal to pay her maternity leave allowance because she did not bear the child amounted to unlawful discrimination. Justice Iseult O'Malley found that the Equal Status Act cannot be used to "fill the gap" caused by the ongoing absence of legislation regarding surrogate births.

While the legality of surrogacy varies from country to country, much of the European Union favours a restrictive approach, either banning surrogacy entirely or allowing for it in only limited and closely regulated circumstances. It is hoped that this legislation will end the regulatory vacuum in Ireland regarding this complex area.


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