When Annmarie McCarthy first met the woman who agreed to be a surrogate for her, words quickly turned to tears.
She was so overwhelmed that this total stranger standing before her in a room in a New Delhi clinic in November 2015 had agreed to do this.
“It was surreal meeting the woman who was going to carry our baby,” the 41-year-old care assistant who lives in Mallow, Co Cork, recalled.
I was very nervous meeting her because — what do you say? Where do you find words to thank somebody who is going to do what has to be one of the most unselfish things a woman can do for another woman?
“You get in the room and emotion just takes over, tears take over. I think she knew well what I was trying to say.
“I started off by going ‘I don’t know how to thank you…’ She said ‘this is something I want to do, it’s okay’. She was trying to tell me ‘it’s fine’. I suppose we both kind of knew exactly what each other was trying to say to each other. We did it through emotion more than anything. A hug and tears.
You end up holding her and saying the words like ‘thank’ and ‘you’ over and over.
Fast forward to today, and a woman who thought she could never be a mother now has two gorgeous, happy twins. Five-year-old David and Olivia, whose first contact with her was when their little baby fingers clasped around her hand for the first time in the New Delhi clinic’s neonatal unit, started junior infants this year at a school just outside Mallow.
And that’s where this story should end, for now, with a ‘…happily ever after’.
But it doesn’t end there for Annemarie McCarthy and for hundreds of other Irish women because, behind the joy of achieving lifelong dreams to parent children that most people take for granted, they — in the eyes of the State — have no rights.
Annmarie is, for all intents and purposes, a “legal stranger” to the twins. If she and her husband Ian were ever to split, he would have sole legal custody over the children.
If she dies, her children would have to pay a higher rate of tax on their inheritance of anything she owns. And on an even more basic level, if a teacher asks for her consent to allow David and Olivia go on a school trip, she is not legally entitled to give it.
And if they need a life-saving operation that requires parental consent? Once again, she can’t give it.
Hopes for legal reform
There are currently approximately 1,000 surrogate children living in Ireland as Irish citizens and, for the last two decades, couples have tried to get the State to resolve the legal issue. Two reports have been produced over the past two decades, and an Oireachtas committee is about to be set up to compile a third.
Professor Conor O’Mahony, University College Cork’s Deputy Dean of the School of Law and Director of the Child Law Clinic, wrote the last report. His Review of Children’s Rights and Best Interests in the Context of Donor-assisted Human Reproduction and Surrogacy in Irish Law was published last December.
It was supposed to help legislators drafting the Assisted Human Reproduction Bill which is currently being put together by various government departments.
The bill will provide for the regulation of a range of practices including gamete and embryo donation and domestic surrogacy, and provides for the establishment of an independent regulatory authority for assisted human reproduction.
That the draft doesn’t mention foreign surrogacy has angered the hundreds of parents of surrogate children in this country.
Prof O’Mahony was asked to compile his report in June 2020 by the then minister for children, who had appointed him as the government’s Special Rapporteur on Child Protection in 2019.
He recommended in his report that, among other things, the Oireachtas should enact comprehensive legislation regulating surrogacy. And Prof O’Mahony recommended this legislation should recognise both domestic and international surrogacy arrangements.
A version of the bill that has appeared on Gov.ie website does not refer to foreign surrogacy, causing dismay and concern among couples who have brought their surrogate children home to this country.
As Prof O’Mahony pointed out in his report, “the unavoidable reality is that children will continue to be born following international surrogacy arrangements and to be cared for by intending parents who may have no legal connection with the children”.
In the face of this reality, the European Court of Human Rights has held that states that are party to the European Convention on Human Rights must provide a pathway to legal recognition of these family relationships.
“The UN Special Rapporteur on the sale and sexual exploitation of children has echoed this point, while expressing concerns about the potential for surrogacy to violate laws prohibiting the sale of children and emphasising the need for a high level of legal safeguards to mitigate this risk.”
He urges those who fear the State will turn its back on foreign surrogacy to be patient. “The process is underway and we have to wait and see,” he said.
“The latest information I have is that we will be seeing this during 2022. It is an ongoing process and it was always likely to take some time. “It’s all to play for at this point and the bill is still being worked on, so I’m not taking this as set in stone yet.”
But he also has words of caution for the Govement. “I think it will be very regrettable if [foreign surrogacy] was omitted from the bill,” he said:
It will be short-sighted because it’s taken so long for us to get to the point where we might actually pass some legislation dealing with this. And so if we don’t deal with this now, when there’s a bill on the table, well, then when will we deal with this?
“I don’t think it’s credible to say we would postpone it to another day. There won’t be a better day to address this issue and postponing it to another day will be contrary to children’s rights.
“At the moment [we] pretend surrogacy doesn’t exist, and have no legal regulation of it leading to situations where children are born into families and cared for in a family where one or both parents have no legal connection to the child. In essence, we deny them the right to recognition of their family relationships.
“It would be far better from a children’s rights perspective to have a framework that allows children family relationships. We won’t achieve any of those things by omittin