Hat tip to my colleague, Stephanie Caballero, for bringing this article to my attention. For any Irish couples considering surrogacy abroad, this should be a must read:
SUSAN COOPER’s baby boy, Alex, is the talk of the town. “Everyone here in Youghal has been fantastic,” she says. “People come up to me and say, ‘He looks the head off his father’. Or, ‘He has your colour’. He’s adorable. After everything we’ve been through, I’m just enjoying time with him.” Alex was born via a surrogate mother in India last August. While still considered a novelty, it’s a route being chosen by more and more would-be parents who aren’t able conceive on their own. But it’s also a process which can be riven with legal uncertainty.
“My newborn son and I had to remain in India for five weeks while my husband returned to Ireland to go through the court system, having being directed there by a government department,” says Ms Cooper. “As you can imagine, this was devastating for my husband and I. All we ever wanted was a family, and at only a few days old it was ripped apart thanks to the indifference of the Irish Government.”
It is estimated there are several hundred children living in Irish families who were born abroad to surrogate mothers but whose legal status under Irish law may be uncertain. However, passport officials in Ireland say they have only been officially notified of between 35 and 40 births, suggesting that many are deliberately avoiding telling the authorities. There is no specific law for surrogacy in Ireland. This means surrogate children born to parents who have difficulty meeting strict legal requirements relating to parenthood and guardianship can be left in a legal limbo, without a passport or citizenship of any kind.
Legislation was recommended in a report from the Commission on Assisted Human Reproduction, published seven years ago, but has never been produced by successive governments. Minister for Justice Alan Shatter recently published new guidelines giving information to commissioning parents on practical and legal considerations. He also insisted it was incorrect that parents would need to leave a new-born child abroad while they returned to Ireland to obtain court orders to get a passport for their child. His comments, however, have angered many parents who have found themselves unable to get clear answers from State authorities and who have spent weeks – and in some cases months – waiting to get passports for their children.
For the Coopers, it was their last chance to have a child. Susan, a factory worker, and her husband Anthony, a carpenter, were both in their mid-40s. They hadn’t been able to have a child naturally. They were at an age at which many IVF clinics stop providing services. The international adoption route was, in effect, blocked off as a result of new restrictions. Surrogacy was the only option. “People think that surrogacy is for rich couples; that you wait on a sun-lounger sipping a cocktail, while another woman has the child. It’s not like that. “It’s very, very tough and stressful. You need to be a strong couple to get through it. With adoption, you know the baby is coming. There is a defined process. “With surrogacy, there is so much uncertainty, which is made worse by the lack of legislation over here.”
A key obstacle for many couples is getting a passport for the child. Mr Shatter says Irish authorities may issue an emergency travel certificate to enable a child to enter the State. In the case of the Coopers, this was easier said than done. When they went looking for such a certificate, they were told it was issued only in “exceptional cases of genuine emergency”. After getting a court order for a passport – which entailed DNA tests and evidence relating to parentage and guardianship – they said they had to wait another week to get the passport itself. In all, it took five weeks of toing and froing. It was also hugely expensive.
“We were lucky with the judge we got. He dealt with it very quickly, but we’re aware of cases where that hasn’t been the case,” says Ms Cooper.
The case of Robyn Maye-Coffey has been the subject of considerable media attention. In this case, her parents fought for 18 months to get citizenship and a passport. “We ended up bringing our lives and that of our daughter into the public domain to highlight the lack of legislation,” says Catherine Maye. Her daughter’s case was finally resolved in the High Court in recent days. However, the couple are bound to a confidentiality agreement.
Senior officials involved in the process of issuing passports – speaking on condition of anonymity – point out that they are obliged to work within the confines of the law, which is in place to prevent abduction and protect the best interests of children. “The passport is not a magic bullet – parents need to establish citizenship and guardianship for the welfare of the child. When that is established, that’s where we come in and issue a passport,” a senior official said.
What everyone agrees on is that legislation is needed to make the process easier and faster and to give much-needed legal certainty. Mr Shatter says officials are working on this. In the meantime, he urges those considering arranging a surrogate birth outside the State to obtain detailed legal advice beforehand.
Susan Cooper is continuing to live amid another form of uncertainty and invisibility in the eyes of the law. She’s not legally entitled to maternity leave – though her employer has been very good to her – and she is not the legal mother of Alex. “My name isn’t on the birth cert. I can’t sign any official forms for him. I worry about something terrible happening to my husband. What would happen then? “The only route for me is to adopt my own child, which seems very unfair. This is an area the Government must address and deal with urgently.”
SURROGACY BY THE NUMBERS
The number of surrogate children born abroad to Irish parents that authorities know about, though the real figure is likely to be in the hundreds
The estimated worth of the surrogacy industry in India next year
The typical overall cost of a surrogacy in India
The typical overall cost of surrogacy in the United States
The typical payment to an Indian surrogate mother for carrying a baby
The typical payment to a US surrogate mother for carrying a baby