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Surrogacy ‘mix-ups’ produce babies without genetic connection
Former High Court judge Bronagh O'Hanlon

10 Jun 2022 / ethics Print

Surrogacy ‘mix-ups’ lead to no genetic connection

Incidents of global surrogacy clinic “mix-ups”, where no genetic link can be established to “commissioning” parents, have come up before Irish courts, retired High Court Judge Ms Justice Bronagh O’Hanlon has said.

Speaking at the Oireachtas joint committee on international surrogacy yesterday (9 June), Justice O’Hanlon said that Irish Department of Foreign Affairs officials had been left “tearing their hair” as a result, in terms of issuing right-to-travel documents.

The judge continued that she did not feel that a genetic link between "commissioning" parents and the child should be kept, in any regulation of paid-for global surrogacy.

“Personally I wouldn’t keep the genetic link because I’ve seen the reality where, through a mix-up in a clinic, that genetic link cannot be proven and does not exist,” she said.

Rapporteur for Child Protection Dr Conor O’Mahony had recommended keeping the genetic link as a protection against child-trafficking in paid-for global surrogacy, she added.

“But there is a huge issue there and, let’s face it, we can’t regulate internationally,” she said.

'Much less expensive'

Prior to the outbreak of war, Ukraine had offered a highly developed group of lawyers specialising in surrogacy, and had been “much less expensive” than other countries, she said.

The judge added that she would “hate to see” slow-moving assessment of surrogacy deals because, for people who wanted babies, time was of the essence.

Whatever system was adopted should be highly efficient, she said, with social workers, guardians ad litem, and psychologists on hand to assess "commissioning" parents. 

There should be a seamless six-week system for those who come back with babies, she suggested.

“The High Court in the last three or four years would have dealt with about 300 of these cases,” she said, and it tried, in an ad hoc way, to come to solutions.

Some children up to ten years of age had not had their status regularised, she added.

“There are children out there where they are completely unregulated, and that is not correct,” she said.

The High Court was the proper forum for paid-for global surrogacy, since the practice threw up questions of nationality, citizenship, and parental order rights, the judge said.

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