Surrogacy is a way for a childless couple or individual to have a child, with a surrogate mother carrying the child. The surrogate mother agrees to be artificially inseminated or to have an embryo transferred to her womb in order to become pregnant. 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.
Surrogacy can take place using any of the following:
- The commissioning mother’s ova and the commissioning father’s sperm
- The commissioning mother’s ova and donor sperm
- The surrogate mother’s ova and the commissioning father’s sperm
- The surrogate mother’s ova and donor sperm
- Donor ova and the commissioning father’s sperm
- Donor ova and sperm, or donor embryo
Surrogacy arrangements can take place using artificial insemination (AI) or in vitro fertilization (IVF) techniques, but may also be carried out without any medical intervention. The surrogacy arrangement may be entered into in Ireland or abroad.
There is no Irish legislation to cover the legal issues arising from surrogacy. In the Report of the Commission on Assisted Human Reproduction (2005) (pdf), the Commission made a recommendation that a child born through surrogacy should be presumed to be that of the commissioning couple. The Commission also recommended the establishment of a regulatory body for assisted human reproduction, including surrogacy. The recommendations have not yet been incorporated into Irish law.
Traditionally, the surrogate mother is considered the legal mother of the child and the child’s guardian, because she has given birth to the child. Legal maternity is important for birth registration, domicile and citizenship provisions, succession, childcare provisions, adoption, social welfare and educational provisions as many of these services and rights depend on the consent of the legal mother.
If the surrogate mother is married, then under Section 46 of the Status of Children Act 1987, the surrogate mother's husband is presumed by law to be the father of the child, unless the contrary is proven. If she is not married, she is the sole guardian.
It would be necessary for the commissioning person(s) to adopt the child in order to have a legal relationship with it. If the child is being adopted, this must be done through the Adoption Authority of Ireland, and there is no guarantee that the child of a surrogate mother would be placed with the biological mother and/or father. Private adoptions are not allowed, and the parent of a child is prohibited from receiving any payment for giving away the child for adoption.
Guardianship and custody
Alternatively, a commissioning man could apply for guardianship of the child under the Guardianship of Infants Act 1964 if he is the genetic or biological father of the child. However, his partner would not have any right to make such an application.
In relation to custody rights, if the surrogate mother uses her own ova to conceive the child, it is likely that an Irish court would hold her to be the legal mother, as she is both the genetic and gestational mother. In the case of a surrogate mother who carries an embryo generated from the commissioning couple’s ova and sperm, the position is not as clear.
Surrogacy arrangements abroad
When surrogacy arrangements are entered into abroad, issues such as citizenship and travel documents also arise. The Department of Justice and Equality has published a document providing advice on citizenship, parentage, guardianship and travel document issues in relation to children born as a result of surrogacy arrangements entered into outside the State.
Anyone considering entering into surrogacy arrangements should seek legal advice. Contact information for solicitors throughout Ireland is available on the Law Society website.