Couple's story highlights concern over surrogacy loophole

Cathy and Keith Wheatley first spoke out about their concern regarding the legal loophole which left their children in a precarious position in 2021.

Five years ago, there was a reluctance amongst parents of surrogate children in Ireland to speak about it.

When Cathy Wheatley broke the silence, more followed.

The Wheatley's first-born baby Helen had died at seven months after Ms Wheatley's uterus ruptured. Despite numerous round of IVF, it became evident she would be unable to carry a child.

They decided on surrogacy in Ukraine and their twins are six years old now.

They remained in close contact with their surrogate, Ivana, which led them to bring her and her three children to live with them in Co Wicklow when the war in Ukraine began.

Like other fathers of surrogate children, Keith has guardianship over their children because he is recognised as being the biological father

This is not the case for mothers like Cathy, who can apply for guardianship after two years and remain guardians until they are 18 years old.

Under Irish law, Ivana is legally the Wheatley children's mother.

However, Ivana, who has three children of her own, has made it clear previously that she does not wish to be on the twins' birth certificate.

To change it requires a parental order through the courts, but this can only happen once the Assisted Human Reproduction (AHR) legislation commences.

The Health (Assisted Human Reproduction) Act was signed into law by the previous government in July 2024 and a commitment to commence the Act is part of the current Programme for Government.

Parental orders are court orders that formally transfer legal parentage from a surrogate to the intended parents, ensuring the child is legally recognised as theirs.

The Act severs the surrogate's legal right to the child, requiring at least one intended parent to have a genetic link.

It is catered for under part 12 of the Act and parents of surrogate children are calling for this part of the act to be commenced as soon as possible to enable them to start the court process.

However, responses from the Minister for Health to written and oral questions in the Dáil appear to show a preference for outstanding amending legislation to go through the Oireachtas first and that the regulatory body providing oversight to Assisted Human Reproduction be up and running before commencement.

While it is understood a CEO of the Assisted Human Reproduction Regulatory Authority (AHRRA) has been appointed, the individual has not been formally announced the minister.

A chairperson and board are in place, however, the State's watchdog for assisted human reproduction will need to employ people, secure offices, establish out how to license fertility clinics here and conduct a review of international jurisdictions regarding surrogacy.

The concern for parents of children born through surrogacy is that this will take time and children will age out of the process before the Act is commenced in full.