Developments in medicine have meant that the options available when conceiving a child have multiplied. Previously the choices were limited – adoption was the only option for a couple unable to conceive. Surrogacy is now a possibility couples are considering in order to have a much longed for child. The timeframe in which surrogacy has gone from an abstract concept to a viable option has meant the law has not kept pace with changing medical and social 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 that the commissioning couple/ person become the legal parents 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 on 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 status of 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. 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(sAnother 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.
Most Recent Development
In March 2013, the Irish High Court found that the biological/genetic 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 was over-ruled by the Supreme Court in November 2014. This case was unusual in that the surrogate mother was a sister of the commissioning mother and the genetic make-up of the twins was that of the commissioning parents. The genetic mother was unable to carry children due to a disability and her sister agreed to be a surrogate using the genetic material of her sister and husband. The father was registered as the twins’ father. The Supreme Court ruled that only the birth mother – not the genetic mother – is entitled to be registered as the mother of a child.
The outcome has major implications for the family, as the mother recognised on a birth certificate is legally viewed as a child’s mother – and is therefore given legal standing in matters including inheritance, while the genetic mother will be given no legal recognition.
Chief Justice Susan Denham’s said that nothing in the Constitution would stop lawmakers from legislating for surrogacy. She held that “any law on surrogacy affects the status and rights of persons, especially those of the children; it creates complex relationships, and has a deep social content. It is, thus, quintessentially a matter for the Oireachtas, subject to the Constitution”.
Government ministers indicated that it will address this issue, in the aftermath of the Supreme Court ruling. However, it remains to be seen how soon legislation will be enacted to deal with this complex area.
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.
Should you require legal advice in relation to a surrogacy arrangement, please do not hesitate to contact us. Our contact details are available here.
Couples considering surrogacy should also bear in mind their eligibility for maternity leave. For more information about legal implications of surrogacy, please see our related articles: