A leading family law High Court judge has said the case of a genetic mother left without any legal rights to her child born through surrogacy after her marriage broke up has "laid bare the grim reality" of the absence of legislation.
The genetic mother in the case was described as being "completely left out of the loop in terms of legal standing".
In another stinging rebuke of the State, Mr Justice John Jordan said it was almost a decade since the Supreme Court said the absence of legislation was "completely wrong" and "even more urgent today".
He said the question now had to be asked: "Why don't we have the legislation?"
"Perhaps someone would now grasp the urgency that does exist for young parents," he added.
The case arose after the marriage break up of a couple who had a child born through surrogacy abroad.
Under current law, only the father of the child had legal rights to the child. The genetic mother must normally wait until the child is two years old before applying for guardianship.
However, in what is believed to be a unique case, the High Court today ruled that the genetic mother can be appointed as a guardian after the parents reached an agreement.
The case had originally come before the court as a wardship application, which was the only legal avenue open to the child's genetic mother in cases where there is a dispute over the custody and access to the child.
Judge Jordan said the case laid bare the grim reality of the legal dilemma faced by the parents of children born through surrogacy.
He said couples who find their relationship is at an end discover that a custody and access dispute must be "shoe horned" into the wardship jurisdiction of the High Court which is governed by an act of 1871.
The judge repeated the observations of a Supreme Court judge almost ten years ago who said it was "completely wrong" that children born through an unregulated process face complications and often embarrassment, even for simple events like registering for a school, attending a doctor or getting consent for medical treatment.
The judge said that despite those observations of the Supreme Court, "here we are looking at two young parents trying to sort out the kind of issues that frequently arise when relationships fail and being without a process to deal specifically with those issues, the genetic mother finding herself completely outside the loop in terms of legal standing".
The issue of the status of genetic mothers and other children born through surrogacy after a relationship break up was raised recently in the Seanad by Senator Mary Seery Kearney, who said she was aware of at least ten cases in the State where genetic mothers and other parents were not being given full access to their children in such circumstances.
Judge Jordan has previously issued a hard-hitting rebuke of the Government's delay in introducing legislation.
The judge had commented that he was not sure those responsible appreciated the urgency of the matter.
In that case last year, the genetic mother of a boy born through international surrogacy abroad said their rights are being breached by the failure of the State to provide a legal mechanism for her to be recognised as the child's mother.
The court was told the family does not have the luxury of time to wait for legislation because the woman's husband is battling a life-threatening illness and is the child’s only legal parent as the law currently stands.
Responding, lawyers for the State informed the court that work was "at an advanced stage" to bring proposals to Cabinet in respect of the regulation of international surrogacy.
