Monday, 25 February 2013

When is a parent not a parent?

The Irish High Court is due to give judgment next month in what is being described as a “landmark” surrogacy case.

Mr Justice Henry Abbott is being asked to rule on whether the genetic mother of twins born via “host” surrogacy is entitled to be named on their birth certificates as their legal parent.

Ireland's High Court, Dublin (much nicer than ours...)
A host surrogacy is an arrangement that uses the egg of the intended mother (or else that of a donor) combined the sperm of the intended father (or else donor sperm).  It is sometimes called “gestational” or “full” surrogacy.

This is in contrast to an arrangement that uses the egg of the surrogate mother and the sperm of the intended father (referred to as “traditional”, “partial” or “straight” surrogacy).

So, the twins in the Irish case are genetically the children of the intended mother and father.  They have no genetic relationship to the surrogate who carried them.

The intended parents brought the court case when the Irish Chief Registrar refused a request to name the genetic mother on the children’s birth certificates.

The court in Dublin heard argument from lawyers for the intended parents, and for the State.  The State is opposing the application, saying that only a woman who gave birth to a child can be viewed as his or her legal mother.  Lawyers for the State say that an amendment to the Irish Constitution in 1983 (which introduced a constitutional ban on abortion) made this “absolutely clear”. 

The Constitution was also referenced by the legal team for the genetic parents.  They say that the State’s stance amounts to a failure to protect and vindicate their constitutional rights to form a legal family.  They claim the State’s approach is to “ignore the biological truth” and to “tear up a scientific test” required in legislation to establish parentage.  Last, they say that the State’s approach is discriminatory:  for birth registration purposes, a child’s father is determined by genetic factors, but not so for his or her mother. 

A fuller account of the competing arguments appeared in the Irish Times at the end of January.

The dispute between these parents and the State comes about, in no small part, because there is no specific law in the Republic of Ireland that regulates surrogacy.  Ireland’s Minister for Justice said last year that he would consider legislative reform of the country’s laws on surrogacy.

The starting point in the UK is no different than in Ireland.  At birth, the woman who carried the child is always the legal mother, even if there is no genetic relationship (as in the Irish case).  The child’s legal father, or second parent, will usually be the surrogate’s husband, civil partner or cohabitant.  If treatment was performed in a licensed clinic, and the surrogate has no partner, the child will have no legal father or second parent. 

But where the UK differs from Ireland is in providing for a way to alter the legal parentage of a child born through surrogacy.  The commissioning parents may become the child’s legal parents by applying for a Parental Order.  There are various conditions which must be met, which include:

·                    the commissioning parents must be married, civil partners or in a committed relationship;

·                    the application must be made within six months of the child’s birth (this is an absolute requirement, and the time period of making the application cannot be extended);

·                    the surrogate (and any other legal parent) must agree to the Parental Order, and

·                   no money or benefit (other than for expenses) may have been paid in relation to the surrogacy.
If a Parental Order is made, the commissioning parents will become the child’s legal parents.  The surrogate (and any legal father or second parent), will cease being the child’s legal parents.  A new birth certificate will be issued for the child naming the commissioning parents.

UK law presently does not allow a single commissioning parent to apply for a Parental Order. 

Judgment in the Irish case is due on 5 March.  There is at least a fair possibility that, whatever the decision, the case will then travel onwards to Ireland’s highest court, the Supreme Court.

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