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The babies born into a legal limbo

ALANA KIRK GILLHAM

Irish Times, Tue, Oct 25, 2011

Surrogacy in Ireland is shrouded in secrecy and a lack of legislation has turned it into a minefield

WHILE ADVANCES in technology have made impossible dreams of having a baby come true through surrogacy, a lack of progress in legislation means many Irish couples are unable, or fearful, to embark on this journey.

Despite the growing use of surrogacy, it is still shrouded in secrecy and legal complexity. Ireland provides no legislation governing surrogacy, and Irish couples who go abroad are being driven into a minefield of fraught and challenging legal issues.

Even when they bring their child home, they do not meet the criteria for maternity or adoption leave, and often find the health system unable to accommodate their needs.

Surrogacy is where a woman carries and gives birth to a baby who is the biological child of another couple. Legally, it can be a complex issue as in many countries, including Ireland, there is a default legal assumption that the woman giving birth is the child’s legal mother.

However, some countries and several individual states in America allow surrogacy so that the intended parents are recognised as the legal parents from birth.

The issue of surrogacy has often hit the headlines when problems arise for parents bringing their child home, but for the majority of couples who undertake this challenging journey, it is an untold story of heartbreak and reward, with little or no support from the Irish system.

Elizabeth* (34) was born without a uterus, and as a teenager was told she could never have children. Options such as surrogacy were never explained to her, and she only discovered this was possible when she began searching the internet in the late 1990s.

“Apart from a desperate desire to have a child of my own, it was extremely stressful being constantly asked by people when or if I was going to have children. This has been the most hurtful part of the whole journey,” she explains.

After getting married, she contacted St James’s Hospital in Dublin, which put her in touch with an Irish couple who had successfully gone through surrogacy using an agency in the US, and are now parents to twin girls.

“Meeting her [the mother] was like winning the lottery. It was living proof that surrogacy works and that I wasn’t the ‘only’ one,” says Elizabeth.

She researched agencies and options, and in August 2009 her daughter was conceived through IVF. Throughout that time, there was little or no support for her in Ireland.

Surrogacy is an expensive process and she was not able to avail of any financial support here, or use any Irish clinics for her IVF treatment.

Her daughter was born in the US where insurance is an important factor because in America the baby is immediately the legal responsibility of the commissioning couple, and the surrogate’s insurance does not pay for the newborn’s medical expenses.

Elizabeth was unable to get insurance in Ireland or America and so, like many couples, decided to take a risk. Luckily, her daughter was in hospital only for a couple of days which cost about $6,000 (€4,230).

If there had been any complications involving a week in ICU, for example, the bill would have run into the hundreds of thousands.

On her return to Ireland, where there is no legal framework to support a child born through surrogacy, it took Elizabeth weeks to get the HSE to agree to do the early check-ups. She was also refused any paid leave to care for her newborn baby.

However, despite the lack of legal or health support, she found people’s reactions to be positive.

“I was anxious about what people would think, but every single person was delighted for us. We received an embarrassing amount of presents for our daughter, partly I think because people loved the story.”

Deirdre Madden, a lawyer and family law campaigner, has been advocating the need for legislation governing assisted reproduction for many years.

“This is the one area I consistently get phone calls about – from doctors, GPs, couples, and solicitors looking for advice on the law.”

The main problem for Irish couples is a conflict of laws, whereby the legal frameworks in Ireland and the country where the baby is born are different.

Madden’s advice for parents who want to take this route is to wait, or to at least be as prepared as possible.

“Go to a solicitor who is familiar with family and adoption law in Ireland and who is prepared to research thoroughly the law in the country they are seeking to use,” she says.

“Even then, there are no guarantees they’ll be able to bring back their baby unless the Irish government introduces legislation here.”

Madden believes it is just not seen as a legislative priority, and although the Department of Health is considering legislation on assisted reproduction, it is unclear if this will deal specifically with surrogacy.

The Department of Justice raised the issue of citizenship for children born to Irish parents abroad through surrogacy at Cabinet in July.

It was agreed that initial work on a Bill relating to surrogacy would begin, and consideration be given to a protocol in the interim to address the issue of citizenship. No timeframe was provided.

Although there is no official surrogacy support group in Ireland, there does seem to be an underground network, whereby commissioning parents help each other, and give advice to couples wishing to begin surrogacy.

Elizabeth thinks the reason it is not yet out in the open is because many of the children born from surrogacy are too young to yet understand the circumstances around their births, and it will become more public once they are older.

“It will always be spoken about in our house. I never want her to think it is something that can’t be talked about,” she says.

And she has no regrets. “I am proud that we went through the journey successfully and I think an Irish support group would be a fantastic thing.

“I would love to celebrate ‘World Surrogacy Day’ every year and make a fuss of our daughter.

“She will always know just how much every dream in my life came true the day that she was born.”

* Not her real name 

2011 The Irish Times

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