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Break-ups cause ‘huge control issues’ for those using surrogacy
Pic: Shutterstock

09 May 2022 / ireland Print

Post-surrogacy break-ups cause ‘huge control issues’

Difficulties with surrogacy arise when relationships break up, solicitor Fiona Duffy told the Oireachtas Committee examining paid-for global surrogacy (5 May).

Surrogacy is about “making families”, and it is wonderful as a lawyer to be involved in that, she said.

“The other side of it is not the happy side, and I don’t do that end of it … because it is very sad,” she said. Break-ups create a huge control issue over the child, she said.

Duffy dealt with one case where a biological father excluded a non-biologically related mother from bringing up the child.

Biological parental consent

“The control end of it is quite frightening, and particularly if there is no guardianship for the second parent,” she said. Such guardianship relies on the consent of the biological parent, Duffy added. 

Irish courts would likely recognise the involvement of the non-related mother in bringing up a child, and award custody rights, Duffy said.

Senator Mary Seery-Kearney said she had witnessed cases of relationship breakdown, where only one parent of a surrogate-born child was recognised in Irish law. This creates “an appalling power imbalance”, she said.

Duffy commented that commissioning parents should only go to licensed fertility clinics abroad, but added that there was no international regulatory body, as such.

“I don’t know how you can mandate it,” she said. 

She added that, as an Irish lawyer, she could only advise commissioning parents on legal processes in this country – they would always need independent legal advice in the country where the surrogacy deal was made.

“If we’re presenting a case to court [here], we have to be satisfied that what happened there is per the law there,” Duffy said, adding that she asks for an opinion of law or an affidavit of laws.

Cost ‘a big issue’

Cost is also a huge matter, she added: “I don’t concern myself with the cost because I think that’s a matter for them [clients], but it is a big issue,” she said.

Duffy  recently received “very negative feedback” on one particular country, which she passed on to clients planning a paid-for surrogacy arrangement there.

Donor agreements and carrier agreements abroad are not governed by Irish law, and come to an end when the baby is born.

The surrogate mother’s involvement is also required for the legal proceedings in Ireland,  and she has rights – whether to co-operate or object.

The surrogate mother required independent legal advice in any declaration of parentage, Duffy added. 

Adult-focused wishes

Senator Sharon Keoghan said that surrogacy was primarily focused on the wishes of adults, rather than the needs and rights of children.

She would prefer to have a surrogate mother named on a birth cert, she said, and asked whether a step-parent adoption could be a route to parentage in paid-for surrogacy arrangements. 

Duffy said this would probably guarantee the second “commissioning” parent more secure rights.

Disabled-rights campaigner Selina Bonnie told the Oireachtas Committee that access to international surrogacy was an essential part of the path to becoming a parent (5 May).

The most private of rights have been denied to disabled people in terms of “access to reproductive justice and fulfilment”, Selina Bonnie said. 

Exclusion from fertility treatments

She said that she, personally, had been excluded from fertility treatments due to “prejudice in the system”, she said.

Such “able-ism” should not be embedded in the regulation of international surrogacy, she said.

“Surrogacy is sometimes what disabled people need in order to become parents,” she said. “It’s really important to provide people with options, because of the need to be a parent.

“It’s not just a want, it’s an ingrained need for many people,” she said.

“Amending this bill to ensure that disabled people can get on the path to parenthood through surrogacy is a basic starting point,” she added. 

The need for inclusive access to AHR and surrogacy were “important components of reproductive justice”, and the right of a disabled person to found a family, she said.

Ms Bonnie said that she had been excluded from inter-country adoption because of her disability.

“Able-ist” attitudes exist across assisted-human-reproduction and maternity services, she said. 

No ‘lived experiences’

Dr Áine Sperrin of NUI Galway said that her research had shown no “lived experiences” of surrogacy among disabled people – highlighting inequality with non-disabled people. 

Excessive costs and the need to travel abroad were an insurmountable obstacle for disabled people, she said. 

Being disabled had been designated a risk to children in Tusla’s child protection policies, but  pre-conception parental-capacity assessments were “inherently discriminatory”, Sperrin said.

Babies and children who grew up around disabled parents adapted to that set-up, she said, and assessments should be done without being “ableist”.

Safety assessments made assumptions about whether disabled people should actually become parents, Sperrin said. They also faced additional costs in raising a child, she added.

Senator Mary Seery-Kearney said that the idea of parental capacity assessments for disabled people was “abhorrent”, adding that all reproductive services should be available to people with disabilities.

Gazette Desk
Gazette.ie is the daily legal news site of the Law Society of Ireland