Courts may be given the power to issue parental orders to resolve parenthood in surrogacy cases, particularly those involving same-sex couples.
The Department of Health is considering the use of such orders, which would allow a court make the intended parent or parents of a child born through assisted human reproduction the legal parents. This is seen as a solution to issues faced by same-sex couples who say their rights are not adequately recognised under current laws.
Under separate regulations to be signed into law by Minister for Health Simon Harris today, many same-sex parents will soon be able to register both names on their child's birth certificate.
A ban on anonymous sperm donation, and the creation of a register for donor-conceived people, will also come into effect shortly as a result of Mr Harris signing regulations to commence Sections 2 and 3 of the Children and Family Relationships Act.
The two sections of the Act will come into effect on May 5th, 2020. However, the Act does not cover surrogacy and other arrangements used by same-sex couples to have children. Legislation governing assisted human reproduction and surrogacy issues has been promised for a number of years but delivery has been slow.
Under the Act, the mother of a donor-conceived child will be allowed to name the second parent, regardless of that person’s sex. The child will have a birth cert naming both parents.
The Minister, who acknowledges some couples will not be covered by the change, is due to meet LGBT families who are campaigning for improved parental rights on Monday and plans to sign the regulations later in their presence.
He said he has agreed to examine areas of law reform required to support all LGBT families and will work with them on these issues in the coming weeks and months.
“Today is a really important day. We will sign the regulations to commence parts of the Children and Family Relationships Act. This is something many families have fought for for years and I am so pleased we now have a start date.
“When we voted in the marriage equality referendum, we voted for every relationship to be treated equally. However, it is clear our legislation still needs to evolve.”
Practical realities
At a meeting with Mr Harris last month, the LGBT campaigners highlighted the practical realities of current laws for their family situations.
A same-sex couple, for example, said one woman in the relationship had donated her eggs, which were then carried by the other woman in a successful pregnancy. The woman who gave birth to the child is considered the mother, but the other woman is not, despite having a biological connection.
Mr Harris said the issues raised require consideration.
“I have some proposals as to how to look at these matters but I want to discuss these with the families first and hope to make some progress on this next week.”
Parental orders are used in the UK, where they can also permanently extinguish the parenthood of the surrogate and her spouse. Once an order is made, the birth is re-registered to record the intended parent(s) as the legal parent(s), and a new birth cert is issued. The original birth cert is sealed and is accessible to the child only after they turn 18.
