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Same-sex Irish couples face discrimination in their reproductive rights

A three month investigation conducted by Noteworthy – an Irish investigative journal which is funded by readers to investigate stories chosen by readers – into Ireland’s laws around surrogacy and egg and sperm donation has found that recent reforms aimed at broadening the rights of children and parents conceived through donor-assisted human reproduction (DAHR) in so-called ‘non-traditional’ families, have ultimately fallen short.

Clinicians, legal experts and parents have said new legislation commenced under the 2015 Children and Family Relations Act (CFRA) still leaves children conceived outside male-female intercouse lagging behind in terms of rights.

One of the main findings of the investigation is that a lack of legislation around aspects of human reproduction has left some children in legally precarious situations. The investigation highlights the story of a child born in Spain to a same-sex female couple, who now remains stateless despite having an Irish mother . The investigation also found that all male same-sex couples remain excluded from being jointly recognised as parents.

Ireland and Lithuania are the only two countries in the European Union which do not provide public funding for fertility treatments. The previous government did commit to providing €2 million to help people with fertility difficulties, however the country’s Supreme court has repeatedly reprimanded the legislature for failing to fully legislate on this issue.

“reciprocal IVF was a casualty”

On May 5 2020, after a five-year delay, parts 2 & 3 of the CFRA commenced. These sections allow for two female parents to be recognised as the legal parents of a child conceived through physician-assisted human reproduction.

While the move might be seen as a step in the right direction, it has still garnered considerable criticism. Ranae von Medding, who carried her wife’s eggs after using reciprocal IVF said:

“The law as it stands remains very restrictive…The new legislation changed nothing for us. Before May, no LGBT+ family had both parents recognised or connected to their children; after, some families do and others don’t, so while we were unequal before, we’re even more so now.”

Von Medding and her wife are among thousands of – predominantly opposite-sex – couples who do not have the same rights of other parents because of how their children were conceived.

Von Medding and her wife used reciprocal IVF, where one mother provides the eggs and the other mother carries them. In this situation, Irish law will only recognise the birth mother as a parent, meaning their children are left precarious with only one legally recognised parent.

Dr Lydia Bracken, assistant dean and law lecturer at the University of Limerick and the author of ‘Same-Sex Parenting and the Best Interests Principle’ has pointed out how these legislative gaps are an issue for the rights of the child, saying:

“Socially, it says these families are lesser, but it also places children in a vulnerable position. If a parent is not recognised, they have no decision-making powers around medical issues and they, for instance, can’t sign consent forms for class trips. The child of an Irish parent may lose out on their passport, citizenship, and inheritance rights.”

While Dr Brian Tobin, a law lecturer at NUI Galway said:

“This [reform] was done in good faith, but reciprocal IVF was a casualty. The legislation continues to see a genetic mother as a ‘known donor’ but simple amendments could allow reciprocal IVF to be embraced.”

Stateless as an unintended consequence

The current legislation is also resulting in children being left in the precarious position of statelessness. The investigation highlights how one child born in Spain to a same-sex female couple, including an Irish mother, remains stateless.

Irish national Sinéad Deevy and her Polish wife Kashka Sankowska have been able to secure Irish citizenship. Before travelling to Spain, Ms. Sankowska had spent four years trying to get pregnant through IVF in Poland. Because of the huge cost of IVF treatments in Ireland they eventually opted for Spain because it is “very liberal and open” to same sex couples trying to have a child.

In 2017 Ms Sankowska successfully became pregnant and the couple married in April of 2018. Less than three months later, Sofia was born in Spain. However, because of the aforementioned laws, Sofia is not recognised as an Irish citizen because Ms Sankowska was the birth mother. At the same time, the Polish authorities refuse to recognise a birth certificate with same-sex parents. The result is that Sofia has been left stateless, unable to acquire the citizenship of either of her parents.

Speaking to the Irish Times, Ms. Deevy said:

“The Irish public believes all gay people have the same rights as straight people now, but we don’t…Nobody asks any questions to straight couples when their children are born abroad to an anonymous donor.”

Stateless people often have difficulty accessing basic rights such as education, healthcare, employment and freedom of movement. Joan Collins of Right to Change TD for Dublin South Central, and Fianna Fáil senator, Catherine Ardaagh wrote to Simon Coveney, Irish Minister for Foreign Affairs, appealing for an emergency travel certificate for Sofia to be brought to Ireland.

However in his reply Coveney reinforced the discriminatory nature of the law, saying:

“an emergency travel certificate may only be issued to a person where that person is an Irish citizen or there is reasonable cause to believe that the person is or may be an Irish citizen”.

Gay male couples excluded

While there are obvious gaps for female same-sex couples in the new legislation, male same-sex couples are excluded entirely. The Noteworthy investigation spoke to Daragh Nener-Lally who met his partner, an Israeli citizen, in 2010.

Shortly following the 2015 marriage referendum Nener-Lally and his partner married. They began the process of having a child through surrogacy shortly after.

Speaking about the experience, Nener-Lally said:

“We went with a US surrogate because it seemed to offer the greatest peace of mind…In Minnesota, we could get a birth cert for our child that has our names on it. But this birth cert is not recognised in Ireland which is very frustrating for us, so we can’t get an Irish passport for our daughter without being asked to sign an affidavit stating that one of us is a legal stranger.”

Before continuing:

“All we want for our family is recognition of a valid birth document from a country that Ireland has diplomatic relations with…I feel let down by my country.”

A 2018 survey of 90 countries, carried out by Families Through Surrogacy, suggested that Ireland has the second-highest rate of surrogacy per capita in the world. Despite this, most children born to a surrogate from Ireland are born overseas because Ireland currently has no regulations on surrogacy. Today, Ukraine – where only male-female couples can avail of surrogacy – is a popular destination.

As things stand, a surrogate, rather than the intending parents, would be viewed as the legal parent in Ireland. In 2005, the Commission on Assisted Human Reproduction recommended that this should be changed. However in 2014, despite the surrogate fully supporting her sister, the Irish Supreme Court ruled that a genetic mother was not entitled to be registered as the legal mother to a baby which her sister carried as a surrogate.

Closing Remarks

While parts 2 & 3 of the CFRA reforms were put forward in good faith it remains clear that the rights of opposite sex couples, and by extention the rights of their children, still lag behind those in “tradional’ relationships in Ireland.

Ireland is a signatory to both the 1954 UN Convention relating to the Status of Stateless Persons and the 1961 Convention in the Reduction of Statelessness. As a result of this fact alone, it should prioritise further reforms to ensure that no child with an Irish parent can be born stateless; The discriminatory law that only recognises the birth mother of a child should be scrapped and reciprocal IVF should be brought into parity with conventional IVF under the law.

It is also vital that male same-sex couples need to be considered in any reforms.

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