CURRENT LEGAL ARTICLES

  

Surrogacy is where a surrogate mother agrees to become pregnant and carry a baby to term for another couple or individual. When the baby is born, the surrogate mother gives the baby to the couple or person with whom she made the agreement. The intended parents or parents of the child (the adults who will raise the child) are known as the commissioning couple or the commissioning person.

Commissioning parents do not automatically have the same rights as other parents. For example, as the commissioning mother does not become pregnant, she cannot get maternity leave. Read more in the section ‘Legal status and rights of the parent’s below.

Surrogacy arrangements can be either:

• Domestic (the whole process takes place in Ireland)
• International (aspects of the process happen abroad, for example, the surrogate mother conceives and gives birth to the child abroad before the commissioning parents take the child home to Ireland).

Altruistic surrogacy is where the surrogate mother wants to help the couple trying to conceive without getting a financial reward. Commercial surrogacy is where the surrogate mother carries a baby for payment. Both altruistic and commercial surrogacy arrangements are unregulated in Ireland at present.

Before you choose to have a baby by surrogacy, you should get legal advice from a solicitor specialising in family law and surrogacy arrangements. See ‘Getting legal advice’ below.

People choose surrogacy for different reasons, for example:

• Infertility
• A medical condition that makes it impossible or dangerous for the woman to get pregnant or give birth
• Same-sex couples who want to expand their family
• Single individuals who want to become a parent

Surrogacy can occur using artificial insemination (AI) or in vitro fertilisation (IVF) techniques. Surrogacy can also be carried out without medical intervention.

Surrogacy can take place using either:

• The commissioning mother’s egg and the commissioning father’s sperm
• The commissioning mother’s egg and donor sperm
• The surrogate mother’s egg, the commissioning father’s sperm
• The surrogate mother’s egg and donor sperm
• Donor egg and the commissioning father’s sperm
• Donor egg and sperm, or donor embryo

Currently, there is no specific legislation for surrogacy in Ireland. It is not legal or illegal.

Current Irish legislation does not cover the specific legal issues in surrogacy. Instead, the legal status and rights of all people involved are protected by the laws dealing with non-surrogate births.

This means the surrogate mother, who gives birth to the child, is the child’s legal mother and guardian. This is the case even if she is not the child’s biological mother (where her egg is not used).

Also, suppose the surrogate mother is married or was married around the date of conception. In that case, her husband is generally presumed, in Irish law, to be the father of the child (unless it is proven otherwise). This is set out in Section 46 of the Status of Children Act 1987. The husband will also, along with the surrogate mother, be the joint guardian of the child.

If the surrogate mother is not married, then she is the sole automatic guardian of the child.

As the commissioning mother (the intended mother of the child) is not considered the ‘legal mother’, the commissioning mother has no legal connection to the child at birth. She does not have a right to make decisions about:

• Birth registration
• Citizenship and passports
• Succession rights (for example, inheritance)
• Childcare
• Adoption
• Social welfare
• Education

Similarly, as the commissioning mother does not become pregnant, she is not entitled to statutory maternity leave (although an employer may still grant it at its discretion) or Maternity Benefit if she is in employment. However, she (and her partner) may be able to get parental leave.

If the commissioning father is the genetic or biological father of the child, he can apply for control of the child under the Guardianship of Infants Act 1964.

However, his partner does not have an immediate right to make such an application (even if she is the child’s biological mother). Instead, if the couple is married or in a civil partnership, the partner must wait 2 years before seeking guardianship or custody rights. These 2 years will show the court that the parent was responsible for the child’s care.

If the couple is cohabitating (living together but not married or in a civil partnership), the partner must wait 3 years before applying for guardianship or custody.

This impacts the surrogate mother’s status as the child’s legal mother and guardian.

Alternatively, the commissioning parents can seek to adopt the child to have a legal relationship with it.

If the child is being adopted, this must be done through the Adoption Authority of Ireland. In this case, there is no guarantee that the child of a surrogate mother would be placed with the commissioning parents.

Private adoptions are not allowed. The legal parent of a child (the surrogate mother) cannot be paid to place the child for adoption.

Some couples choose to go abroad to use a surrogate. If you enter a surrogacy arrangement abroad, you will need to prepare for issues such as citizenship and travel documents for the child.

Normally, DNA testing to prove the genetic parentage is necessary before the child can be taken to Ireland by a person other than the surrogate mother. You can read advice on citizenship, parentage, guardianship and travel document issues (pdf) about children born through surrogacy abroad. You should also speak to a solicitor specialising in surrogacy arrangements – see ‘Getting legal advice’ below.

It has long been recommended that a child born through surrogacy should be presumed to be the child of the commissioning couple rather than the surrogate mother. This was set out in the Report of the Commission on Assisted Human Reproduction (2005) (pdf). The Commission also recommended that a regulatory body be set up for assisted human reproduction, including surrogacy.

There has also been a proposal for an ‘Assisted Human Reproduction Bill’ to regulate many aspects of domestic surrogacy since 2017. The proposal covers:

• The minimum requirements to be a surrogate
• The legal status of all involved
• The regulation of any financial aspect of the surrogacy arrangement
• The process of consent.

As drafted, the Bill would only apply to altruistic surrogacy arrangements (where the surrogate mother wants to help a couple conceive a child without getting a financial reward). The Bill would only apply to surrogacy arrangements carried out entirely in Ireland, not international agreements. It would only regulate surrogacy arrangements occurring after the legislation is enacted.

However, the proposal has still not been made law, and there is currently no timeline available for any possible enactment of the law.

In 2020, the Minister for Children and Youth Affairs requested a review of children’s rights and best interests in the context of parentage in cases of donor-assisted human reproduction, including surrogacy. In April 2021, the Review of Children’s Rights and Best Interests in the Context of Donor Assisted Human Reproduction and Surrogacy in Irish Law was published. The review makes many recommendations, including that comprehensive legislation regulating surrogacy be enacted in Ireland at the earliest opportunity.

If you are considering entering a surrogacy arrangement, you should seek legal advice, ideally from a family law solicitor specialising in surrogacy arrangements.

The solicitor will give you all the relevant information about:

• The various legal issues associated with surrogacy
• The importance of signing a surrogacy agreement
• The documentation and forms you need to prepare (particularly if you are choosing surrogacy abroad)
• How to apply for guardianship of the child so that you can legally make decisions about their care

You can find contact information for solicitors throughout Ireland on the Law Society website.

You can read more about surrogacy in Ireland on the Growing Families website.

You can also find support and information about fertility treatments on the National Infertility Support and Information Group (NISIG) website. Or, read more on our page on Fertility treatments and assisted human reproduction in Ireland.

On Facebook, you may also want to contact Irish Families Through Surrogacy (IFTS)contact Irish Families Through Surrogacy (IFTS) on Facebook. You can also follow IFTS on Twitter and on Instagram.

If you are considering entering a surrogacy arrangement, you should seek legal advice, ideally from a family law solicitor specialising in surrogacy arrangements.

The solicitor will give you all the relevant information about:

The various legal issues associated with surrogacy
The importance of signing a surrogacy agreement
The documentation and forms you need to prepare (particularly if you are choosing surrogacy abroad)
How to apply for guardianship of the child so you can legally make decisions about their care.
See www.greensolicitors. i.e. for further information 0214708570.

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Best regards,

Dylan Green

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