A BALLYBOFEY couple who have tirelessly campaigned for surrogacy legislation are calling for no more delays in enacting change.
Marie McPhilemy and her husband John are proud parents to Lucy, a fifth class pupil in Dooish National School, born to them through altruistic domestic surrogacy.
In the eyes of the law, Mrs McPhilemy is Lucy’s guardian, not her mother, as it was her sister, Sharon, who gave birth to her.
This has given rise to legal uncertainty, in that the signing of consent forms for medical interventions, passport applications, and even the opening of a bank account for her daughter all currently have to be signed off by her husband.
There was fresh hope in June when family travelled to Dáil Éireann for the formal passing of the last stage of the Health (Assisted Human Reproduction) Act 2024.
The adopted Bill was signed into law by President Higgins on July 2, 2024.
But this law does not become operational until it is formally commenced by a Commencement Order, which again must be passed. This usually takes around six months.
It could well be the case that the July 2024 Act, the primary Act will not be commenced until the new September 2024 amending Bill is made law which will be July 2025.
John and Marie McPhilemy and their daughter Lucy on the outside appear an ordinary family.
Marie works as an audiologist. John is self-employed in the family furniture business.
They live just outside Ballybofey. Lucy is in fifth class in the local primary school, Doohish National School.
Yet John, Marie and Lucy have an extraordinary story to tell in that Lucy is probably the first baby in Ireland, born through surrogacy.
Marie’s own story began in Ardara where she is from, in that she was born a sick baby into the Watters family.
Marie as a child underwent a lot of surgery and it was after one such operation that doctors told her at the age of sixteen, that it was unlikely, if not impossible, that she would be able to carry a baby to full term, due to her medical complications.
And it is here that the Watters family showed their mettle.
Sharon, Marie’s sister, although only two years older, immediately said she would carry Marie’s baby for her when she heard the news.
Marie at that time at sixteen, was more interested in discos than babies. Fate intervened and Marie later met John through a blind date and they went on to get married.
Marie was open with John from the outset that it would be difficult, if not impossible, for her to have children herself.
This was later confirmed by three medical consultants.
Medical science also moved on and Sharon, who was then married herself with children, did indeed make good on that early promise and went on to carry John and Marie’s daughter, Lucy.
As Sharon said in her presentation to the Joint Oireachtas Committee, reporting on surrogacy, “I offered my womb as a safe place for Marie and John’s baby to grow”.
Sharon’s own children were consulted before the surrogacy and everyone in the immediate family knew that the baby Sharon was carrying was Marie and John’s.
Marie says they kept everything very simple. It was a complex process and uncharted territory, however.
Marie and John went to Prague in the Czech Republic for the egg retrieval. When the eggs were successfully fertilised, Sharon came out to Prague for the embryo transplant.
This first round of IVF was not successful. The second round was, and joyfully Lucy was the result.
Lucy was born by planned caesarean section in University Hospital Letterkenny on 18th October 2013.
Marie was the first to hold Lucy, she was present for all the pre-natal scans and was also the first to see the confirmed pregnancy test. Sharon took the test and left it for Marie and John to read first.
Marie and John kept the extra fertilised embryos and later tried for a brother or sister for Lucy, without success. Catherine, a different sister this time volunteered to carry the babies and although two transfers were successful, these resulted in first trimester losses, unfortunately.
Irish Families Through Surrogacy and others have campaigned for over a decade for legislation regulating surrogacy.
On June 26, 2024, three generations of the Watters/McPhilemy family travelled to Dáil Éireann to be present in the House for the formal passing of the last stage of the Health (Assisted Human Reproduction) Act 2024.
Marie, Lucy and Marie’s mother Anne, made an occasion of it and travelled by train from Sligo to Dublin.
At Dáil Éireann they had their passes cleared by security and were escorted with other families into the House.
When the Bill was read and formally adopted a loud cheer went up.
A few minutes later tears, hugs and kisses were the order of the day in the foyer outside.
A cake had been arranged and there was tea for everyone.
Ministers Donnelly and other members of the Oireachtas were present and the mood was of that of relief and congratulations.
Marie and Lucy describe it as so very emotional.
The adopted Bill was signed into law by President Higgins on July 2, 2024.
This law does not become operational, however, until it is formally commenced by a Commencement Order, namely a Statutory Instrument, which again must be passed. This usually takes around six months.
In practical terms what does this new Act mean for John, Marie and Lucy?
Under Irish (and under the law of England, Scotland and Wales) the birth mother is legally the mother of the baby.
The common law doctrine of mater semper certa est, was confirmed by the Irish Supreme Court as recently as 2023.
Literally translated from the Latin it means, “the mother is always certain”, meaning the mother who gives birth is the legal mother.
This doctrine predates medical science where the birth mother may not be the biological mother.
Also, there is the presumption that if the parents are married, the father of the baby is the birth mother’s husband.
In John and Marie’s case, Sharon, Marie’s sister was married when Lucy was born. Legislation was needed to overturn these common law doctrines and this is the reason for the decade long advocacy.
Lucy is John and Marie’s biological child, but this is not recognised at law.
Marie at law is not recognised as Lucy’s legal mother.
The Health (Assisted Human Reproduction) Act 2024, provides that the biological relationship can be recognised by the courts in the form of a parental order, through an application to the High Court, supported by documents of proof.
The Act itself provides that the parental legal relationship will be recognised in cases where the child born through surrogacy is biologically that of one parent.
This covers cases where there is a donor. T
he act prohibits the use of the surrogate’s own ovum and further prohibits commercial domestic and international surrogacy.
Parental orders will be granted when the Act is formally commenced and will retrospectively cover those children born abroad through international surrogacy and taken home to this jurisdiction.
Families have waited a long time for this Act. Marie, for example applied for and was made Lucy’s guardian after two years of caring for her.
This remains the law.
This has given rise to legal uncertainty, in that it takes John’s permission for so many things, like a passport, opening a bank account, consenting to medical treatment and anything concerning Lucy’s welfare.
The Programme for government published in September 2024 provides for a further amending Act, the Health (Assisted Human Reproduction) (Miscellaneous Provisions) Bill 2024.
This is to address issues still outstanding related to parentage and citizenship arising from the use of fertility clinics abroad by Irish residents and Irish citizens living abroad and other amendments required to the original Act.
It will take another year at least for this amending Bill to become law.
It could well be the case that the July 2024 Act, the primary Act will not be commenced until the new September 2024 amending Bill is made law which will be July 2025.
Let’s hope that things do move quickly as families have been left in limbo for too long.
Last week was Lucy’s birthday.
Last week also was the week when Lonely Planet named Donegal as the third best region on earth to visit saying: “The northernmost Irish county is purely wild with a big heart.”
Donegal is special, as are its people. John, Marie and Lucy and their wider families in their journey exemplify love in action.
John as an aside mentioned my own father, now deceased who back in the day was manager of Donegal Creameries.
He apparently loaned JMP (McPhilemy’s furniture) a lorry to go to Scotland to bring over second-hand furniture when McPhilemy’s were starting out.
Donegal people have always helped each other out.
At a time when fertility rates are going down and medical science has advanced, there are always new opportunities to help each other out.
– Eithne Reid O’Doherty BL
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