Today’s Irish Times reports that an Irishman and his wife (an EU citizen) have been granted leave to bring High Court proceedings in an effort to secure an Irish passport for their baby daughter who was born as a result of a surrogacy arrangement with a woman in Ukraine. Leave was granted by Peart J. in an ex parte application yesterday. The baby, who was born in January 2011, is not entitled to Ukrainian citizenship and can lawfully remain in the Ukraine for just 90 days. Without travel documentation, however, she cannot leave and the couple claim that she may be placed in an orphanage if they cannot get her out of Ukraine.
As reported by the Irish Times, the couple have initiated proceedings against the Minister for Foreign Affairs and they are seeking a court order compelling the Minister to issue an Irish passport or emergency travel documentation for their currently “stateless” baby. In the alternative, they seek orders directing the Minister to consider their application for travel documentation and to provide a reasoned decision on that. Furthermore, the couple want a declaration that any failure to answer their application speedily is in breach of the child’s rights under the Constitution and European Convention on Human Rights and in breach of fair procedures.
Counsel for the couple told the High Court that the results of a DNA test show the man is 99.99 per cent likely to be the biological father of the child and that both he and his wife are registered on the child’s birth certificate as her parents.
News of this Irish case comes just days after baby Samuel Ghilain (aged 2 years and 3 months) finally arrived in Belgium under a Belgian passport, having been refused permission to leave Ukraine since his birth by surrogate in that country in November 2008 (see report here). Samuel was held in foster care for the first 16 months of his life, at a cost of €1000 a month. He was then transferred to a Ukrainian orphanage for most of the past year, when money for foster care ran out and an attempt at smuggling him out of Ukraine failed. His parents, a pair of legally married Belgian men, had been faced with ongoing bureaucratic difficulties in securing a passport for him, and it was only finally granted by the Belgian Foreign Ministry after a court decision in the couple’s favour. (The Belgian government initially planned to appeal the court decision and refused to issue the passport, but this approach was apparently altered after a social media campaign: see report here.) While the Belgian couple have suggested that certain anti-gay bureaucrats in both Belgium and Ukraine may have delayed the issuing of the passport in their case, the similarities between their situation and that of the case currently before the Irish courts centres on the absence of legislation providing for surrogacy arrangements. Both Belgian and Irish law are silent on such arrangements and the Belgian Foreign Minister Steven Vanackere had stated that a “gap in the law” made it problematic for Belgium to recognise the use of surrogate mothers in other countries.
Hopefully the child born in January to an Irish father will not have to wait until she is more than 2 years old to leave Ukraine and come to this country to live with her parents. Furthermore, it is to be hoped that the Irish legislature will promptly make legislative provision for the complicated issue of surrogacy and related matters of assisted human reproduction such as IVF treatment. The as yet unimplemented 2005 Report of the Commission on Assisted Human Reproduction stated, in relation to surrogacy, that it should be permitted subject to regulation and that any child born through surrogacy should be presumed to be the child of the commissioning couple. In late 2010, some five years after the publication of that report, Dr Deirdre Madden of UCC (a member of the Commission) called on the government to implement the recommendations set out therein. Dr Madden said “The issues will not go away and people deserve clarity and we need to reach consensus. We elect people to take on that responsibility and to legislate for us.” Hopefully newly-elected Dáil members will at last bring legal clarity to this area. This will no doubt be too late for the baby at the centre of the current Irish High Court case.