In the absence of any legal framework for surrogacy in Ireland, many Irish couples go abroad to avail of surrogacy arrangements. In recent years, there has been substantial growth in foreign surrogacy arrangements in countries such as India, Ukraine and the United States. Unlike Ireland, these countries have legislated for commercial surrogacy and the arrangements have legal standing from the outset.
Cross-border surrogacy agreements by their very nature are complex. It is therefore imperative that before you enter such an agreement that you seek independent legal advice on the effect of Irish law on your arrangement. Surrogacy may have a legal framework in the country in which your baby is born, but it is also your responsibility to ensure that your arrangement is compatible with Irish law and that your child will be able to travel back to Ireland.
The Irish authorities will not give any assurances before the birth of a child regarding parentage, citizenship or guardianship so you need to be prepared to bring the necessary Court applications as quickly as possible after the birth of your child. The potential fallout if you cannot legally bring your surrogate baby home, emotionally and also in practical terms can be devastating. Therefore it is essential that that you are aware of the risks, time and costs (outside of the surrogacy agency fees) associated with international surrogacy agreements, before you enter into them.
Currently, where your baby is born is a significant factor.
If your baby is born in the United States, your baby can travel back using US travel documents. The child is given a US passport because it was born in the US. In reality this means the authorities are unaware of the surrogacy arrangements and therefore the legal parentage and guardianship issues don’t arise.
However, it is not so simple when you are returning from other countries that do not issue passports to children born via surrogacy arrangements.
In this scenario you must satisfy the Irish Courts that either you or your spouse are a legal parent of the child, or that the child is an Irish citizen. The Court might also consider whether the consent of the child’s guardian(s) must be obtained before allowing the child to travel to Ireland. These applications often take time and they must be made before you are allowed to return to Ireland.
Establishing a Legal Relationship
The issue of who is the legal mother of the child is has been decided in a Supreme Court in November 2014. It ruled that the birth mother is the legal mother of the child.
Legislation has been promised to provide a legal framework for surrogacy in Ireland.
However, until legislation is enacted, it is the relationship between the father and the surrogate child that is relied upon establish a legal relationship between a surrogate baby and the intended parents under Irish law. This is done by way of a declaration of parentage in favour of the biological father.
In order to obtain a declaration of parentage, the biological father must bring an application in the Circuit Court under the Status of Children Act 1987. You will have to provide DNA evidence from a reliable source of your paternity and the surrogate mother, her husband (if she is married) and the Attorney General must all be served with the proceedings. You should also apply for Guardianship at this time as it is important for that one of you will have the legal authority to make decisions (eg medical care) on behalf of child once you return to Ireland.
These applications cannot be made until after the birth your baby so you should be prepared for the fact that there may be a delay between the birth of your child and the time when you will be legally allowed to bring your baby home.
The next step is to establish citizenship and obtain an Irish passport for your child. As your child has been born outside the State, one of your baby’s legally recognized parents must be an Irish citizen and the Declaration of Parentage in favour of the biological father should be sufficient to satisfy this requirement.
In addition, all of the legal guardians of the child must consent to the issuing of the passport to the child.
Emergency Travel Certificates
In certain circumstances the Irish authorities will issue Emergency Travel Certificate to allow a child to enter the State before a passport is obtained. Each case is considered individually and as a general rule, the authorities will look at the following:
• whether the child is or may be an Irish citizen;
• whether the application is being brought by a guardian;
• whether the consent of all of the child’s guardians has been given or dispensed with by an Irish Court;
• whether it is in the best interests of the child.
The best interests of a child are paramount and in general the Irish authorities are not keen to allow a child to travel to Ireland with an adult with whom they have no legal relationship. However to overcome this, you can give an undertaking to notify the local health authority of the child’s presence within 2 working days of their arrival, and the father can undertake to apply to the Court for a declaration of parentage and guardianship within 10 working days in order to put the relationship on the appropriate legal footing.
Should you require legal advice in relation to a surrogacy arrangement, please do not hesitate to contact us. Our contact details are available here.
For more information about legal implications of surrogacy, please see our related articles: