Surrogacy in Ireland
Surrogacy is a way for a 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.
People may think about or seek a surrogacy arrangement for different reasons. The most common reasons are:
- a medical condition that makes it impossible or dangerous for the woman to get pregnant and/or give birth
- same-sex couples that want to expand their family
- single individuals that want to become a parent
Surrogacy can take place using any of the following:
- 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
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.
As the commissioning mother does not become pregnant, she is not entitled to maternity leave or Maternity Benefit if she is in employment. However, either or both commissioning parents may be able to avail of parental leave.
There is no Irish legislation to cover the legal issues arising from surrogacy. Rather, due to this current legal vacuum, the legal status and rights of all involved are governed by legislation dealing with non-surrogate births and children.
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.
A proposal for an Assisted Human Reproduction Bill to regulate many aspects of surrogacy has been in existence since 2017. The proposal covers issues such as the minimum requirements to be a surrogate, the legal status of all involved, the regulation of any financial aspect of the surrogacy arrangement and the process of consent. As drafted, it would only apply to surrogacy arrangements conducted entirely in Ireland and not those with an international element. However, the proposal has still not been made law and no timeline is presently available in relation to any possible enactment.
Traditionally and currently, the surrogate mother is considered the legal mother of the child and the child’s guardian, because she has given birth to the child even if she is not the biological mother of 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 generally 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.
Guardianship and custody
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 an immediate right to make such an application. After 2 years the partner, if married or a civil partner, could seek to be appointed guardian or to have custody rights by virtue of having had day-to-day responsibility for the care of the child. If co-habitating, there must be 3 years of day-to-day responsibility before an application can be made. This has no impact on the surrogate’s status as the child’s legal mother and guardian.
Alternatively, the commissioning person(s) could seek 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.
Surrogacy arrangements abroad
Some couples choose to go abroad to use a surrogate. When surrogacy arrangements are entered into abroad, issues such as citizenship and travel documents also arise. Normally, DNA testing to prove the genetic parentage is necessary before the child can be taken to Ireland. 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.