Developments in medicine have meant that the options when it comes to conceiving a much longed for child have multiplied. Previously the possibilities were limited. Adoption was the only option and the law in relation to adoption has been developed and refined over a long period of time to deal with the sometimes complex issues this scenario can throw up. However the timeframe in which surrogacy has gone from an abstract concept to a viable option for hopeful couples has meant the law has not kept pace with changing developments.
Surrogacy allows either a couple or an individual to have a child using a surrogate mother who agrees to carry a child to term with the intention of giving custody to the commissioning couple/ person (the intended parent(s) of the child under the surrogacy agreement) after the child is born.
The surrogacy can take place using the commissioning parents’ ova and sperm, or donor ova and/or donor sperm may be used, or the surrogate mother may provide the ova. The agreement may be made in Ireland but there is an increasing number of people availing of surrogacy arrangements abroad, in countries such as India and the Ukraine.
The Current Position:
There is no Irish legislation regarding surrogacy and the many ancillary issues that arise in relation to parentage. Traditionally under Irish law, it is the birth mother who is recognised as the legal parent of a child. If she is married, her husband is presumed by law to be the father of the child and a joint guardian. If the birth mother is not married, she is the sole guardian. The commissioning parent/ couple have no legal relationship with the child.
This is very significant because the child’s citizenship, domicile and succession rights as well as access to education, social welfare and childcare services will be determined by the status of its birth mother, rather than by the commissioning parent(s). The commissioning parents are not entitled to be registered as the child’s parents, even if they are its biological parents.
In order to create a legal relationship, a commissioning parent can apply to adopt the child. Private adoption arrangements are prohibited and therefore the adoption must be done through the Adoption Authority of Ireland. However the birth mother must still consent to the adoption and there is no guarantee that the child of a surrogate mother will then be placed with the commissioning parent(s).
Another option is for the child’s biological father to apply for Guardianship of the child and in this way, create a legal relationship. However his partner would have no such right and would remain a stranger in the eyes of the law.
In March 2013, the Irish High Court found that the biological mother of twins born via surrogate should be registered as their mother under the Civil Registration Act 2004, rather than the birth mother. However this decision is being appealed to the Supreme Court.
Legislation is currently being prepared to deal with legal basis of surrogacy in Ireland and in November 2013, a briefing note on the Children and Family Relationships Bill was published by the Department of Justice and Equality.
The proposed legislation will allow for parentage to be legally assigned to a commissioning couple on the basis of a genetic connection of one or both of the intended parents. However, the consent of the surrogate mother will still be required and if she does not consent, she will remain the legal mother of the child. Surrogacy agreements will remain unenforceable by or against the persons making such arrangements. Only reasonable costs such as medical bills and loss of earnings may be paid by the commissioning parents, if this is agreed in advance and all parties to a surrogacy must obtain legal advice about the surrogacy and its implications before any arrangements are made. Commercial surrogacy will be prohibited and it will be an offence for a person to receive payment for making or facilitating a surrogacy or advertising surrogacy arrangements.
Therefore, while the proposed legislation will allow for altruistic surrogacy, couples hoping to avail of commercial surrogacy arrangements in countries such as India, Ukraine and the United States would be prohibited from doing so.
The Children and Family Relationships Bill should be published shortly and only then will the proposals in relation to surrogacy be debated in full. However, it is positive that the legislature has recognised the need to deal with this contemporary issue facing Irish families, rather than leaving them sitting in legal limbo. At the very least it will clarify what commissioning parents can expect from a surrogacy arrangement.
In the interim, if you are considering entering a surrogacy arrangement, we would advise that you speak to a solicitor in advance, so that you are fully aware of the consequences your decision may have you and your family. It will also clarify any rights you may or may not have in relation to a child born via surrogacy, whether you are the commissioning parent or the proposed surrogate.
Couples considering surrogacy should also bear in mind their eligibility for maternity leave. For more information on this, check out our article on Maternity Benefits and Surrogacy Arrangements.