Surrogacy in Ireland – The Legal Considerations.

Surrogacy has evolved as an attractive route for people to realise their dreams of parenthood.  There are a number of reasons for people to consider the option of surrogacy; such as infertility, a medical condition where pregnancy could endanger life, same sex couples or individual persons.

Recently Image.ie asked us to speak with them about the legal side of surrogacy in Ireland. The law in this area is complex as it strays across a wide cohort of family arrangements, encompassing ethical and moral considerations. Karen Tobin is a Family Law Solicitor at Comyn Kelleher Tobin (CKT) and in this article, she takes us through the intricacies of surrogacy in Ireland and the legal factors that are important to be aware of if you are considering this route.

What is surrogacy?

Surrogacy enables a couple or individual (known as the commissioning persons) to enter into an arrangement to have a child where a woman (known as the surrogate) agrees to carry and bear a child on their behalf.   The genetic material of one, both or neither intending parent may be used in creating the embryo. When the child is born the care and rights of the child are given to the commissioning persons.

There are different types of surrogacies:

Traditional surrogacy is where the surrogate uses her own egg and is then genetically connected to the child.

Gestational surrogacy is where the surrogate uses the egg of the intending mother or of a separate donor and therefore the surrogate is not genetically related to the child.

Surrogacy arrangements may be either;

• Domestic (i.e. take place in Ireland), or,
• International (i.e. the surrogate mother conceives and gives birth to the child abroad, before the commissioning parents take the child home to Ireland).

Who are the child’s legal parents in Ireland?

It is important to note that just because a genetic relationship may exist between the commissioning parents and the child, it does not mean that they are a legal parent under Irish law. Acquiring parentage under Irish law is an obstacle which the commissioning parents must overcome.

In Ireland, the person who physically gives birth to the child is the legal mother and the implications of this are that she is sole guardian and custodian regardless of her relinquishing those rights in the surrogacy contract.

Even if the commissioning woman uses her own eggs and is able to prove a genetic connection to the child, it does not give her any legal parental rights in Ireland.  This principle has been well established in the case of MR v An t-Árd-Chláraitheoir [2014] 3 IR 533. The only way an intended mother can gain parentage is through adoption of the child.

Who is the Legal Father?

Under Irish Law, the legal father of the child is the person who is married to the surrogate mother. If the surrogate mother is not married, then the commissioning father, provided he is genetically connected to the child, needs to make the following legal applications to establish parental rights through the Irish Courts:

1. Declaration of parentage – to prove this, the court will require DNA confirmation.
2. Appointed joint guardian – because the surrogate mother has automatic guardianship in Ireland.
3. Court Order – a court can be asked to disregard the surrogate mother’s consent.  This is necessary because for example the passport offices ordinarily require the signature of both guardians, and a court order will avoid this requirement.

Rights of a Commissioning Mother

The only way the commissioning mother can establish her parental rights is by adoption.  Commissioning parents who are not genetically connected to the child can apply for guardianship after a period of two years of caring for the child.

If parental rights are not put on a legal footing, the following difficulties can arise:

• Consent to medical procedures.
• Applying for a passport for the child.
• Inheritance rights and consequent tax implications.
• Enrolling children in school and giving necessary consents.

There is also potential for significant adverse legal implications if the commissioning parent’s relationship breaks down in terms of a custody dispute.

Legal Status of Surrogacy in Ireland

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

Commercial surrogacy arrangements within Ireland (where the surrogate mother receives a payment) are not permitted due to ethical concerns on the trafficking of persons.

Altruistic surrogacy is permitted in Ireland and this is where the surrogate mother is a close friend wishing to help the couple trying to conceive. Reasonable expenses can be compensated to the surrogate mother through an informal agreement.

It is also important to note that the intended mother cannot avail of maternity leave but can apply for parental leave.

International Surrogacy

The complexity of international surrogacy is reflected in the difficulty that the Irish government find in regulating something which occurs outside of the state. There is little international consensus across the world on legal approaches to surrogacy. The laws differ from country to country. Therefore, it is important to research the law relating to surrogacy in each country before engaging in the process. The Department of Justice have issued guidelines on international surrogacy arrangements. These serve as a useful tool for intending parents, however, these are only a description of the current regime and are not a legally enforceable set of rules.

For many Irish couples, the Ukraine is a popular choice to undertake a surrogacy contract. From the moment the child is born, the Ukraine recognises that the Irish parents are the legal parents. The Ukraine also permits commercial surrogacy. However, the Ukraine is only available for married heterosexual couples who have medical evidence that they cannot conceive children.

Same sex couples are likely to engage with clinics in America.

Bringing your child back to Ireland and the necessary steps to take.

A child born through international surrogacy can travel back to Ireland if an Emergency Travel Certificate (ETC) is successfully issued by the Irish Government.  The application can be made by the father or guardian of the child. In order for the commissioning father to apply, DNA testing must be carried out by a clinic recognised by the Irish authorities and a report provided confirming parentage.  In the absence of a declaration of paternity, the application for the ETC must be made by the surrogate mother. If she is married consent must also be obtained from her husband.   The State will also have to be satisfied of the following:

• Consent of all guardians have been obtained (i.e. the surrogate mother and her husband if applicable),
• the child is or may be an Irish Citizen, and
• the best interests of the child are served if the certificate is granted.

Once the child arrives in Ireland the intending parents are legally obliged to notify the HSE within 48 hours.

Legal proceedings for a declaration of parentage from the Irish Courts must be issued within 10 days of returning to Ireland. It is therefore necessary to engage with your Irish Solicitor and have the necessary paperwork in place to make these applications.

Conclusion

The lack of legislation around surrogacy in Ireland adds to the burden and uncertainty felt by prospective parents. However, there is draft legislation proposed to regulate the area, but it is unlikely to be enacted in the near future. The proposed Assisted Human Reproduction Bill 2017 has been drafted and if enacted in its current format, the legislation will apply to domestic altruistic surrogacy only and not to international arrangements. Furthermore, it will only regulate surrogacy arrangements occurring after the legislation is enacted.

It also proposes the establishment of a regulatory authority to assist intending parents in the monitoring of surrogacy arrangements.

The Bill is attracting much criticism as it will not change the legal status for parents who choose international surrogacy and the legal limbo for parentage will still exist.

At present, Ireland have an opportunity to learn from other jurisdictions and create a functional and effective system for all involved. Currently surrogacy is privatised and unregulated creating unnecessary and convoluted complexities in an already complex and emotional time in people’s lives.

This article was written by Karen Tobin and Cliona O’Brien. Karen represents clients in the areas of child care and family law. Her family law experience focuses on surrogacy, divorce, judicial separation, civil partnership, nullity, custody and access disputes, maintenance and domestic violence disputes in contentious and non-contentious matters.

If you would like to speak with Karen, or a member of our Family Law team, please click here.

Disclaimer: The information provided in this article is as a general guide only. You should contact a solicitor for legal advice specific to your situation.