Intention not biology should determine parenthood, a fertility expert has said.

Dr Mary Wingfield, founder of the Merrion Fertility Clinic, writing in the Irish Independent, said that she had “serious reservations” about the reasoning used by the High Court in deciding that the biological parents of twins born to a surrogate mother were the legal parents of the children.

Dr Wingfield, writing on behalf of the Irish Fertility Society, which represents those working in the fertility sector in Ireland, said that the judgement relied heavily on using biological ties to establish parenthood.

She said: “While this fits the current case, it could have disastrous consequences for the significant number of couple who become parents using donor sperm or eggs.”

Dr Wingfield, who was a member of the Government-appointed Commission on Assisted Human Reproduction (CAHR), said that the Commission, which published its report in 2005, decided that “the principle of intent” should apply in determining legal parentage.

She said: “Therefore the majority opinion concluded that the child born through surrogacy should be presumed to be that of the commissioning couple.

“The CAHR concluded, however, that in donor programmes the intent of all parties involved-that the donor will not have any legal relationship with the child and that the woman who gives birth to the child will be the child’s mother-should be used as the basis for the assignment of legal parentage.”

She claimed that in all countries “the presumption in cases of egg, sperm or embryo donation is that the recipient woman and her partner are the legal parents of the child”.  

She said: “If the arguments used in the current case were applied to such donor cases, Irish law would be contrary to the rest of the world and would certainly not be in the interests of a large number of couples with fertility problems, or their children.”

Many European countries, such as Austria, France, Germany, Italy and Norway, ban surrogacy outright as it creates confusion as to who the mother of the child is and is judged not to be in the interests of children.

One of the members of the CAHR on which Dr Wingfield sat, Christine O’Rourke, expressed dissent about this recommendation, saying that “the risks of exploitation and commodifcation” accompanying surrogacy outweighed its benefits.

Ms O’Rourke, Advisory Counsel to the Attorney General at the time, expressing her dissent in the CAHR’s report, recommended instead that surrogacy be prohibited.

She said that there was “a broad cultural consensus that a woman who has just given birth may be uniquely vulnerable and the removal of her baby against her will is repugnant, unless she poses a threat of immediate harm to the child”.

She added: “This social norm is reflected in Article 10(2) of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which obliges Contracting States to accord special protection to women who have just given birth.”