Gillian O’Mahony looks at the issue of surrogacy in Ireland and looks at the issues that you need to know in this blog and accompanying podcast.
What is surrogacy?
Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth.
Surrogacy is a way for a childless couple or individual to have a child, with a surrogate mother carrying the child. She then carries the child to term with the intention of giving custody of the child to the person/couple (known as the commissioning person/couple) with whom she has made the agreement.
How does surrogacy actually work?
Traditional surrogacy is where the surrogate carries a child conceived using her own egg and sperm from the intended father. Artificial insemination is used, and the surrogate is genetically related to the child.
Gestational surrogacy is when the surrogate carries a child conceived using the egg of the intended mother or egg donor and sperm from the intended father. In Vitro Fertilisation (IVF) is used, and the surrogate is not genetically related to the child.
Is Surrogacy Legal?
There is no legislation here. Surrogacy is neither legally prohibited nor permitted here.
The laws vary from country to country.
Countries such as France, Germany, Italy, Spain, Portugal and Bulgaria prohibit all forms of surrogacy.
In countries including the UK, Ireland, Denmark and Belgium, surrogacy is allowed where the surrogate mother is not paid, or only paid for reasonable expenses. Paying the mother a fee (known as commercial surrogacy) is prohibited.
Commercial surrogacy is legal in some US states, and countries including India, Russia and Ukraine.
Who are the child’s legal parents?
In Irish law, the mother is the individual who gives birth – even if the ‘intended’ or ‘commissioning’ mother supplied the egg used in the surrogacy.
As a result, the surrogate is the child’s legal parent and the legal guardian in both traditional and gestational cases.
If the surrogate mother is married, then her husband is presumed by law to be the father, and will be considered joint guardian. This can be disproved via DNA testing.
What are the legal complications of surrogacy in Ireland?
There are no internationally recognised laws for surrogacy, so many parents and children can be left vulnerable – or even stateless.
It can take several months to bring a surrogate baby back to the parents’ home country, as they may not be automatically recognised as the legal parents.
An example of the complications can be seen from the Gammy case. In Thailand, surrogates are seen as the legal mother, so if the parents leave the baby with the mother, she is legally responsible. This was a case where twins were conceived and carried through surrogacy. One twin Gammy was born with down syndrome and a congenital heart difficulty. The intended parents left Thailand to return to Western Australia with the healthy twin.
It ultimately transpired that the surrogate mother had fallen in love with the twins when she was pregnant. An international crisis then developed and the surrogate mother sought the return of the healthy child Pippa but a Court ruled that she should remain with her Australian parents.
This crisis then led to Thailand passing a law banning foreign couples from using Thai women as surrogates after a series of high-profile scandals tainting the image of the hitherto unregulated industry.
If someone was thinking of going abroad. What are the differences in law between different jurisdictions?
This laws differ drastically from jurisdiction to jurisdiction.
The Ukraine seems to be a popular choice. Commercial surrogacy has been legal in the Ukraine since 2000. For many families, the Ukraine is more cost effective option than travelling to North America. Also under Ukrainian law, the baby is considered to be the child of the Irish parents from the moment of conception and their names appear on the birth certificate. “That’s a big draw for many couples, as it means the surrogate cannot change her mind,”
However the service is only available for married heterosexual couples with medical evidence that they cannot have children.
In India, the intended parents are seen as the legal parents, whereas under UK law, the surrogate mother is recognised as the legal mother.
If someone is thinking about surrogacy in Ireland, what should they do?
The first step on your surrogacy journey should be to obtain legal advice. It is vital before commencing the journey to ensure that you have the correct advice regarding the requirements for getting your baby back to your home country, and obtaining legal parenthood.
The second step is to decide what country and clinic you will engage with. This decision is very personal for intended parents.
Once you have chosen your clinic and destination, it is vital that you sign a surrogacy agreement. This is an agreement between you (the intended parents), the surrogate, and the clinic. This must be done before embryo transfer. This agreement sets out the parameters for the gestation period and what is expected of the surrogate and intended parents.
What documents are required before bringing a surrogate child back to Ireland?
Prior to choosing a country or clinic it is important to investigate whether the child is entitled to a passport from the country of birth which allows him/her travel home to Ireland or whether you need to apply to the Irish authorities for an emergency travel certificate
The biological father will be required to file a number of documents with the Irish embassy/consulate in the country of the child children’s birth. These include a DNA test and results of the father and child/children to establish their genetic connection and undertakings to the Irish authorities to notify the appropriate local health authorities in the location where the parents reside of the child/children’s arrival in Ireland and to apply for the requisite court orders within the stipulated time periods. Once all the necessary documents are furnished to the Irish embassy or consulate and they are satisfied with same they will then furnish the requisite emergency travel documentation for the child or children to allow the child or children travel to Ireland with their Irish parents.
What should surrogate parents do when they return to Ireland?
Legally, when you arrive back in Ireland with your new baby you are required to notify the HSE of your arrival within 48 hours and issue proceedings within 10 days for your Declaration of Parentage.
This is the legal process here which gives the biological father his rights to parentage and in turn to his son or daughter. Following a recent change to Irish guardianship laws, the mother can, after two years residing with the child, and if married to the father, apply for an order appointing her joint guardian of the child or children, otherwise she will have had to be cohabiting with the father for at least three years before the application.
While Irish law currently does not provide specifically for a domestic surrogacy system, the aforementioned Acts provide for specific orders that allow for key legal recognitions for the parents of children born by way of foreign surrogacies, such as declarations of parentage, appointment as a guardian, granting of custody, Citizenship and Issuance of travel documentation & Passports.
How long does the legal process take?
Formal recognition by the Irish courts currently can vary depending on what part of Ireland the commissioning parents live in, principally due to administrative issues. Paperwork must be served on the surrogate mother and also on the Attorney General.
Is the commissioning mother entitled to maternity leave?
As the commissioning mother does not become pregnant, she is not entitled to maternity leave or Maternity Benefit if she is in employment.
For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.
The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.
