Irish law must either ban surrogacy or regulate it, a leading child law expert has said. 
Geoffrey Shannon (pictured), the Government’s Special Rapporteur on Child Protection said that the recent High Court decision which allowed an Irish couple to be recognised as the legal parents of two children born to a surrogate mother did not create legal certainty on the issue.
Speaking to the Sunday Independent, he said a decision needed to be made whether we make provision for surrogacy in law or make it illegal as it is in many European countries.
Mr Shannon said: “Children should not be left in a legal limbo. A child born through surrogacy could potentially have five individuals involved with it: the surrogate mother, the commissioning mother, the egg donor, the commissioning father and the sperm donor.”
He said that the lack of any regulation meant that children being born by surrogacy could end up stateless.
Mr Shannon said that a referendum may not be needed, but that voters could make their views known through some sort of consultative forum, if the Government saw fit.
He accepted the recent High Court case was important, but he insisted it was not enough to comprehensively deal with the issue, and legislation was required.
The case involved the genetic parents of twins born to a surrogate won their case to have the biological mother recognised as the legal mother.
The genetic mother of the twins, who were born to her sister using her embryos, had challenged the refusal of the Chief Registrar to record her name on the birth certificates.
Mr Justice Henry Abbott granted a declaration that the genetic mother in the case is the mother of the twins, and further ruled that the genetic mother and the children are entitled to have this fact recorded on the children’s birth certificates.
The judge said there was nothing in the Irish legislative context that positively affirmed mater certa semper est, or motherhood is always certain.
In the wake of the case, Mr Shannon said it was clear that children born as a result of a surrogacy arrangement were vulnerable in terms of their status within the State.
“The failure of the Oireachtas to legislate in this area has resulted in many children being stateless, and we shouldn’t forget that fact,” he said.
He pointed to the report of the Commission on Assisted Human Reproduction that examined the lack of regulation of assisted human reproduction.
That report recommended that surrogacy should be allowed, subject to regulation, and that any child born through surrogacy should be presumed to be the child of the commissioning couple.
“We need clarity with new legislation. The courts should not be the battleground. This is a matter really for the Oireachtas,” said Mr Shannon.