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‘I have no rights to him': mothers of children through surrogacy wait in legal limbo
When Sarah Griffin's baby boy Caelan was born last July, he came into the world just two days after President
Michael D Higgins
signed a first-of-its-kind surrogacy Bill into law.
This was important to Griffin, a 35-year-old cervical cancer survivor, whose childhood friend Marie Delahunty had offered to act as a surrogate for Griffin and her partner Jordan Collins.
'It was an embryo we created before my cancer treatment,' Griffin says. 'Genetically, Caelan is mine and Jordan's baby.' But Delahunty's name is still on Caelan's birth certificate, under 'mother'.
Almost one year on, that same landmark law still has not come into effect, meaning Griffin and her son Caelan still have no legal relationship with each other. It's understood the legislation may not come into effect until early 2026, due to amendments required to the law.
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'We were so excited about that new law, but nothing has actually changed,' Griffin said. 'I'm a legal stranger to Caelan, I have no rights to him.'
Being a mother of a child born through surrogacy means Griffin does not have the right to leave the State with Caelan on her own. Neither does she have the right to give medical consent for him. She has even lost out on maternity leave and maternity pay.
The family, who live in Walkinstown, Dublin, have money set aside for the moment they can finally go to the High Court for an order recognising Griffin as Caelan's mother. But that cannot happen until the law is commenced.
Proponents of the law argue that regulating international surrogacy arrangements would be one of the most effective ways of ensuring such arrangements are ethical
It has been delayed for two reasons. The first is because the law needs to be amended to make sure that retrospective surrogacy arrangements such as Griffin's can be properly recognised in law.
The second reason is that the Assisted Human Reproduction Regulatory Authority (AHRRA) needs to be set up. The AHRRA will regulate surrogacy and all assisted human reproduction practices such as domestic IVF. The AHRRA is currently in the process of appointing members to its board, and is working to appoint a chief executive.
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Groundbreaking legislation to regulate surrogacy and fertility clinics passed almost 20 years after first mooted
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There had been some reports that the law was being delayed because of concerns from the
Department of Justice
that it would leave Ireland in breach of a European Union directive on human trafficking.
In a statement, the department said it 'does not have concerns about the commencement of the Health (Assisted Human Reproduction) Act 2024 from an anti-human trafficking perspective'.
The statement said it had worked with the
Department of Health
to ensure the law 'has sufficient safeguards to protect the rights of surrogate mothers, including from the threat of human trafficking'.
Some concerns had been raised on human rights grounds about human trafficking linked to international surrogacy.
Last year, the
Irish Human Rights and Equality Commission (IHREC)
wrote to then minister for health
Stephen Donnelly
warning that international surrogacy was an area 'marred with increasing human trafficking'.
It is understood that some officials in the Department of Health saw the IHREC's intervention as 'unhelpful', believing that the IHREC had not recognised some of the nuances in what the Irish law was trying to do.
Minister for Health
Jennifer Carroll MacNeill
said the issue raised by IHREC has been 'acknowledged and considered', but the
European Commission
has never raised a concern about the law.
Proponents of the law argue that regulating international surrogacy arrangements so that they would only be recognised for a prescribed 'green list' of countries would be one of the most effective ways of ensuring such arrangements are ethical. Currently, these arrangements are not regulated. Ireland is set to be the first country in the world to attempt to control them.
For Irish Families Through Surrogacy, an advocacy and support group, the implied link between international surrogacy and human trafficking has 'been deeply disturbing and distressing for many in our community'.
'The use of such language in the context of ethical surrogacy – where children are brought into the world with love, intent, and utmost respect and care for the surrogate – is both misleading and hurtful,' Sara Byrne, a spokeswoman for the group, said.
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Bill does not address the known dangers and exploitative practices of commercial surrogacy arrangements
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'It paints an inaccurate and harmful picture that risks alienating our children and families. We are also concerned about the risk of our families being politicised and turned into yet another divisive issue in public discourse.'
Mary Seery Kearney, a former Fine Gael senator and a former member of the Special Joint Oireachtas Committee on International Surrogacy – the committee which led to the current law – points out that further delays with it will have a 'very human' consequence.
Ms Seery Kearney suffered five miscarriages and endured 13 rounds of IVF before her daughter Scarlett was born via surrogacy in 2015. Scarlett is now 10 years old.
'By the time I get into the High Court, she's easily going to be 11,' Ms Seery Kearney said. 'I'm her mother for life, no matter what, but I would like, some time, to be recognised by the State as her mother before she turns 18.'
Former Fine Gael senator Mary Seery Kearney suffered five miscarriages and endured 13 rounds of IVF before her daughter Scarlett was born via surrogacy in 2015. Photograph: Sam Boal/Collins
The Department of Health said that while 'significant' progress has been made on the law, 'it is not possible to give a definitive timeline for the commencement of the AHR legislation'.
