Introduction:

Surrogacy is a term used when a woman agrees to carry a pregnancy as a surrogate mother for another person, who will claim the parental rights of the child. The parental rights holding person acts as the legal guardian who has the authority to care for the child born from the surrogate mother. There is no definite set of laws or rights in Ireland to cover the legal issues arising due to surrogacy and the maternity rights in Ireland also favors the male parent for the child. In this essay, the ethical issues due to surrogacy and maternity rights are explained in detail with a high court case where a “Woman loses maternity benefit claim over surrogacy” which was published in Irish Times on Tuesday, 7 Jul 2015.

Regarding surrogacy, there is no definite ethics and legislation in Ireland regarding surrogacy where is an upsurge in the cases regarding surrogacy. Questions regarding the societies concern for a woman being used as a paid breeding tool. Questions regarding the societies concern for exploitation and commodification, of a woman being used to becoming pregnant and deliver commissioning couple’s child. Questions about contracting a woman for surrogacy, “Is it more like contracting for employment or labor or prostitution or slavery?”. Questions regarding the motherhood of the child where “Is genetic mother the actual mother or the gestational mother the actual mother?” and much more. These major ethical issues are faced in Ireland regarding the maternal rights and legal guardianship for the child which were born through surrogacy. The problems that arise regarding the surrogacy is due to the unrefined Irish legislation which doesn’t cover the legal issues arising from surrogacy.

High Court Cases regarding surrogacy:

Woman loses maternity benefit claim over surrogacy:

The commission on assisted human reproduction released a report in the year 2005 which recommended that the parental rights should be given to the commissioning parents and not to the surrogate mother. A regulatory body is suggested for the regulation of assisted human reproduction, including surrogacy was also recommended by the commission. However, still there is no regulating body for the assisted human reproduction.

According to the commission on assisted human reproduction, the surrogate mother is the child’s guardian and legal mother. The legal maternity is important for documents such as birth certificate, citizenship, etc. By the Status of Children Act 1987 under Section 46 the surrogate’s husband is considered as the child’s father, and if she is not married, she is the sole guardian.

The woman had an emergency hysterectomy due to a serious cancer illness during her pregnancy which left her unable to carry a pregnancy. She and her husband came to a decision that they were going to use surrogacy to give birth to their baby. A surrogate entered into an agreement in the US, where she was implanted by the woman and man genetic material fertilized via in-vitro fertilization treatment. A daughter was born through the surrogacy process in the US by the surrogate where every arrangement was legalized. The couple became the legal guardians and the biological parents by the registration in the birth certificate of their daughter.

The woman was allowed to avail leave for maternity by her employer, but the pay maternity leave allowance was not agreed by the employer. She also applied to the Department of Social Protection for the State allowance which replied that she is not eligible. The woman claimed the refusal of maternity leave allowance through the court by discriminating in breach of the Equal Status Act. However, in the judgment, Ms. Justice Iseult O’Malley disagreed the woman’s claim by stating that the Equal Status Act cannot be taken into consideration in the case of surrogacy where is an absence of legislation. The judgment also included that the maternity leave allowance is for the woman who carries the baby during her pregnancy. The woman was denied her maternity benefits due to the reason that the child was born through surrogacy.

Landmark High Court surrogacy case adjourned:

According to the commission on assisted human reproduction, the surrogate mother is the child’s guardian and legal mother. The legal maternity is essential for documents such as birth certificate, citizenship, etc. By the Status of Children Act 1987 under Section 46 the surrogate’s husband is considered as the child’s father, and if she is not married, she is the sole guardian. However, the man commissioning the surrogacy can also apply for the child’s guardianship if he is the genetic or biological father under the Guardianship of Infants Act 1964. The position is not clear for the surrogate who carries the embryo of the commissioning couple, but if the surrogate uses her ova to conceive the child, the Irish court will hold her as the legal guardian for the child.

In the “Landmark High Court surrogacy case” the parents who commissioned the surrogacy discovered that they had no genetic link to the child which was born using the surrogate. It was believed to be the first case of its kind to come to the courts hearing. Since the parents could not establish a genetic link to the child and the child was allowed into Ireland. The parents applied to make the child as a ward of the court where an interim order was granted, and the couples were appointed as the interim guardian for the child in September. Further DNA testing was ordered by Senior Counsel Gerard Durcan to the President of the High Court Justice Peter Kelly, which can be used to establish the parentage of the child. The judge ordered that further clarification and confirmation is required and the Child and Family Agency (Tusla) has no concerns regarding the welfare. The full hearing of the case would proceed in the month of January.

Surrogacy can also be Good:

In the developing world, there is both good and bad for every decision made in the people’s life. Surrogacy came into existence due to many reasons; two major are difficulty in adoption and infertility. 11.3% of people are infertility in the US which is the statistics given in the year 2013. Infertile people who want their children who can fulfill the wish of the family has no other option rather than surrogacy so that there is a possibility for living out the dream. Not just infertility people goes for surrogacy, the people who are married to the same sex also has no other option rather than surrogacy. In these cases, surrogacy might not be bad though adoption is suggested and it is a very complicated process and takes a longer time to adopt a child than surrogacy. The legal paperwork involved along with the psychological evaluations and the waiting list etc. may take many years. On the cons, it debated that the surrogate mothers are well aware and conscious of their choice to carry someone else’s child. The woman involved in the surrogacy is perceived as an altruistic gesture, and most of them have a positive experience and feel satisfied with the surrogacy process.

Conclusion:

Surrogacy has both the aspects of good and bad in Ireland it is not well defined which is double edged sword both for the people commissioning surrogacy and to the government. In the first court case of surrogacy, the woman was affected due to the denial of her maternity benefits and the second court case of surrogacy; the court got affected by taking the child as the ward of the court. Clear rules and legislation for the process of surrogacy should come into existence in Ireland. A governing body should be allotted for resolving the problems involving the surrogacy and the problems arising from surrogacy. The government body should have the power decide whether the couple is allowed to commission a surrogacy or to adopt a child if there is a possibility for adoption. According to the commission on assisted human reproduction’s report released in the year, 2005 should be taken into clear considerations, and a panel should be arranged to decide the power to be allocated to the governing body.