Ever since they got married, New York-based Irish couple Mark O’Looney and Eoin Cannon knew they wanted to start a family together. Just a few weeks ago, after navigating a largely unregulated surrogacy industry and blowing through all their savings and then some (upwards of $100,000 or €86,000), they learned the joyous news that they are expecting twins – a girl and a boy – using eggs provided by a donor.
"Today we got confirmation their tiny hearts are strong and beating away," the couple wrote on their Instagram account, entitled Two Men and a Surrogacy. "We already love them so much and I know people have warned us, but words really can't describe the emotions we both have right now."
As two first-time dads, the couple know they are in for a bumpy ride, not least for having to fend off any prejudice that might be directed at their mixed-race children (the egg donor is a black woman). But a more immediate challenge awaits when they bring their babies home to Ireland – that of being recognised as their legal parents.
The absence of a legal framework to address the parentage of children born through donor-assisted human reproduction procedures in Ireland was exposed in 2014 . The Supreme Court examined a case centring on twins born using genetic material from a married straight couple but carried to term by the genetic mother’s sister. In its decision, the judges found themselves bound by the common law principle, “mater semper certa est”, which means that the woman who gives birth to a child – in this case the genetic mother’s sister – is the legal mother.
We find it more comforting that there are two women involved... We're two dads and it feels somehow right to have two women who are helping us
A year later, in 2015, the Children and Family Relationships Act was introduced to create a legal framework for children born through non-traditional means. But so far, aside from providing for the recognition of same-sex female parents in very limited circumstances, and making some provisions for non-biological parents to apply for guardianship, little has changed and the “mater semper certa est” principle is still in effect. This status quo is problematic for any family that uses a surrogate to carry a baby to term, and it leaves gay male couples like Mark and Eoin in a legal limbo.
Like many couples in their situation, they opted for gestational surrogacy where the woman who gives birth has no genetic connection to the baby, rather than traditional surrogacy where the carrier is using her own eggs. “We find it more comforting that there are two women involved,” says Eoin. “We’re two dads and it feels somehow right to have two women who are helping us.” In their case the two women – the aforementioned egg donor based in New York and a gestational carrier, Haley, based in Texas – are both experienced in the surrogacy process and are open to being made known to Mark and Eoin’s twins, and even to meeting up with them down the road. But neither woman is looking to be considered a legal parent.
In fact, long before the pregnancy was confirmed, the egg donor signed a contract explicitly denouncing any parental rights over any children that might result from the eggs she produced. Similarly, probably around the 20-week scan, the carrier will go before a court in Texas to validate a gestational surrogacy agreement and a pre-birth order adjudicating Mark and Eoin as the sole legal parents, a document which will form the basis of the children’s birth certificates. So, in the United States, the babies’ parentage will be clearly established before they are born. But in Ireland, technically, Haley is the presumed legal mother, and if Haley were married (she’s not) her husband would be the legal father.
“When the children come home, their US birth certificates are recognised, but the gestational carrier – the woman who gave birth to the children – is considered the mother of the children until her rights are extinguished under Irish law,” according to Tracy Horan of Horan Solicitors.
We really never want to think about the kids in those terms ... that this one is his and that one is mine
In order to assert their parental rights Mark and Eoin will have to make a declaration of parentage with the HSE within 48 hours of their arrival in Ireland. In order to do this they will need to have taken DNA tests in the US before they travel home that establish a genetic link to the children, and the birth mother would have to have been present when they took those tests.
The application is then considered either by the High Court or the Circuit Court, a process that can take about 8 months. If the court grants their request, then they will each be named the legal parent and sole guardian of the child with whom they have established a genetic connection.
As they are both just the biological father of one twin (they each fertilised one of the implanted embryos), these tests will only allow them to be named the legal parent of that child. They can apply for joint guardianship of their other child if they can demonstrate that they have co-parented the child for the past two years, that is once they turn two.
Aside from the emotional aspect – “we really never want to think about the kids in those terms,” says Mark, “that this one is his and that one is mine” – this also opens up another set of legal issues. In the US, they will each be the legal parent of two children, in Ireland, as the law stands, they can only be the legal parent of one and a guardian of the other.
Earlier this year, the special rapporteur for child protection issued a report examining the need for comprehensive legislation to address all the complexities of donor-assisted births. In it, they acknowledged that while surrogacy is a matter that generates lots of strong and mixed opinions, “children will continue to be born following international surrogacy arrangements” and that Ireland must provide a pathway to legal recognition of these family relationships.
But while the need for legislation has been deemed a government “priority” and while the general scheme of the Assisted Human Reproduction Bill has been approved, no definitive timeline has yet been established for its publication or passage. Until it is, the legal situation for couples like Mark and Eoin, who cannot pursue a pregnancy through the traditional means, will remain a quagmire.