A couple who commissioned a child through a surrogate mother in India and cannot obtain an Irish passport for 
it are planning to take a case to the Supreme Court after a Circuit Court ruling refused to recognise them as the legal parents of the child.
In Ireland only the birth mother of a child is recognised as the legal mother.
The couple, Michael Coffey and Catherine Maye, have asked a firm of solicitors to take a case to force the Government to legislate, according to a report in the Sunday Times.
They claim that the current law, because it only recognises the birth mother as the legal mother, discriminates against the child. Commissioning fathers must establish paternity and apply for guardianship through the Circuit Court.
The child requires eye surgery, but because the couple are not recognised as the legal parents, they cannot give the required consent. The father in this case is not married to the child’s mother meaning he is not automatically recognised as the child’s legal guardian.
Last November, the Government came under pressure to legislate for surrogacy after both the Leader of the Opposition, Michéal Martin and Foreign Affairs Minister Eamon Gilmore weighed in on the issue.
Mr Martin said that the State was entitled to issue a passport on the basis of DNA evidence of the paternity of the father.
However, Mr Gilmore has said that only a High Court order could solve the problem, and that he cannot exercise discretion. He said the Government would co-operate with any appeal to the High Court by the couple.
He added that the Government was in the middle of looking at legislation on surrogacy, but that any such proposal would “take time”. He said the Government was at “an advanced stage” in preparing guidelines as to how surrogacy issues should be handled.
A spokesman for the Department of Justice said that Kathleen Lynch, a junior minister at the Department “intends to develop legislative proposals in this area”. However, no legislation on the issue is contained in the Government’s spring term legislative programme, published last week.
The spokesman added that surrogacy was “not illegal in this jurisdiction as such” but that there was “no legal framework to recognise surrogacy”.
The Minister for Justice, Alan Shatter, announced that he was to publish guidelines on surrogacy last month, but the Department website contains no such guidelines.
Surrogacy involves gestating a baby in another woman’s womb. A number of Irish couples have used foreign surrogacy mothers, usually from India, Ukraine and America.
Presently, in such situations, the law recognises the birth mother as the mother for legal purposes. This is the case even if the woman contracting the arrangement with the surrogate mother has donated the egg, and is the biological mother, she is not recognised as the legal mother.
The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents.
One of the members of the commission, 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.”
Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a birth mother (that is a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the surrogate mother nor the genetic mother but who raises the child).
Austrian law seeks to ensure that medically assisted procreation takes place similarly to natural procreation, and that the basic principle of civil law, that it is always clear who the mother is, should be maintained by avoiding the possibility that two persons could claim to be the mother.
A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.