Surrogacy: What is the law in Ireland? - by Lynch Solicitors

What is surrogacy?

Surrogacy is when a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. 

Surrogacy is a way for a childless couple or individual to have a child, with a surrogate mother carrying the child.  She then carries the child to term, intending to give custody of the child to the person/couple (known as the commissioning person/couple) with whom she has agreed.

How does surrogacy work?

Traditional surrogacy is where the surrogate carries a child conceived using her egg and sperm from the intended father. Artificial insemination is used, and the surrogate is genetically related to the child.

Gestational surrogacy is when the surrogate carries a child conceived using the intended mother's egg or egg donor and sperm from the intended father. In Vitro Fertilisation (IVF) is used, and the surrogate is not genetically related to the child.

Is Surrogacy Legal?

The laws vary from country to country. 

Countries such as France, Germany, Italy, Spain, Portugal and Bulgaria prohibit all forms of surrogacy.

In countries including the UK, Denmark and Belgium, surrogacy is allowed where the surrogate mother is unpaid or only paid for reasonable expenses. Paying the mother a fee (known as commercial surrogacy) is prohibited.

Commercial surrogacy is legal in some US states and countries, such as India.

Who are the child's legal parents?

In Irish law, the mother is the individual who gives birth – even if the 'intended' or 'commissioning' mother supplied the egg used in the surrogacy. 

As a result, the surrogate is the child's legal parent and the legal guardian in traditional and gestational cases.

This means that the surrogate mother has the rights and duties for the child.

If the surrogate mother is married, her husband is presumed by law to be the father and will be considered a joint guardian. This can be disproved via DNA testing.

What are the legal complications of surrogacy?

There are no internationally recognised laws for surrogacy. Therefore, many parents and children can be left vulnerable or even stateless.

It can take several months to bring a surrogate baby back to the parent's home country, as the law may not automatically recognise them as the legal parents.

An example of the complications can be seen in the Gammy case. This case involved an Australian couple and a Thai surrogate.

In Thailand, surrogates are legal mothers. So, if the parents leave the baby with the mother, she is legally responsible. 

This was a case where twins were conceived and carried through surrogacy. One twin, Gammy, was born with down syndrome and congenital heart difficulty. The intended parents left Thailand to return to Western Australia with the healthy twin. 

It ultimately transpired that the surrogate mother had fallen in love with the twins when she was pregnant.  An international crisis then developed, and the surrogate mother sought the healthy child, Pippa's, return. A Court ruled that she should remain with her Australian parents. 

This crisis led to Thailand passing a law banning foreign couples from using Thai women as surrogates. This happened after a series of high-profile scandals tainting the image of the previously unregulated industry.

If someone is considering going abroad, are there any differences in law between different jurisdictions?
These laws differ drastically from jurisdiction to jurisdiction.

In India, the law sees the intended parents as the legal parents. Contrastingly, under UK law, the law recognises the surrogate mother as the legal mother.

If someone is thinking about surrogacy, what should they do?

The first step on your surrogacy journey should be to obtain legal advice. It is vital before commencing the journey to ensure that you have the correct advice on the requirements for getting your baby back to your home country and obtaining legal parenthood.

The second step is to decide what country and clinic you will engage with. This decision is very personal for the intended parents. 

Once you have chosen your clinic and destination, you must sign a surrogacy agreement. This is an agreement between you (the intended parents), the surrogate, and the clinic. It must be done before the embryo transfer. The agreement sets out the parameters for the gestation period. It also sets out what is expected of the surrogate and intended parents.

What documents are required before bringing a surrogate child back to Ireland?

Before choosing a country or clinic, it is crucial to investigate whether the child is entitled to a passport from the country of birth, allowing them to travel home to Ireland or whether you need to apply to the Irish authorities for an emergency travel certificate.

The biological father will be required to file several documents with the Irish embassy/consulate in the country of the child's birth. These include:

• A DNA test and results of the father and child/children to establish their genetic connection;
• Undertakings to the Irish authorities to notify the appropriate local health authorities in the location where the parents reside of the child/children's arrival in Ireland and; 
• To apply for the requisite court orders within the stipulated periods. 

Once all the necessary documents are provided to the Irish embassy or consulate, and they are satisfied with them, they will furnish the requisite emergency travel documentation for the child or children to allow them to travel to Ireland with their Irish parents.

What should surrogate parents do when they return to Ireland?

When you arrive back in Ireland with your new baby, you must notify the HSE of your arrival within 48 hours and issue proceedings within ten days for your Declaration of Parentage.

This legal process gives the biological father his parentage rights and, in turn, to his son or daughter. Following a recent change to Irish guardianship laws, the mother can, after two years residing with the child, and if married to the father, apply for an order appointing her joint guardian of the child or children. Otherwise, she will have had to cohabit with the father for at least three years before the application. 

While Irish law currently does not provide specifically for a domestic surrogacy system, the Children and Family Relationships Act 2015 provides specific orders for children. It allows for critical legal recognitions for the parents of children born through foreign surrogacies, such as declarations of parentage, appointment as a guardian, granting of custody, citizenship and issuance of travel documentation & Passports.

How long does the legal process take?

The Irish courts' formal recognition can vary depending on what part of Ireland the commissioning parents live in, principally due to administrative issues. Paperwork must be served on the surrogate mother and Attorney General.  

Is the commissioning mother entitled to maternity leave?

As the commissioning mother does not become pregnant, she is not entitled to maternity leave or Maternity Benefits if employed.

Legal developments in surrogacy

It has long been recommended that a child born through surrogacy should be presumed to be the child of the commissioning couple, rather than the surrogate mother. This was set out in the Report of the Commission on Assisted Human Reproduction (2005). The Commission also recommended that a regulatory body be set up for assisted human reproduction, including surrogacy.

The Assisted Human Reproduction Bill was first published in 2017 and it contained proposals to regulate many aspects of assisted human reproduction and domestic surrogacy. 

The Joint Oireachtas Health Committee undertook pre-legislative scrutiny of the General Scheme of the Assisted Human Reproduction Bill and, in 2019, issued its report with recommendations for improvement of the legislation.

In April 2021, the Review of Children’s Rights and Best Interests in the Context of Donor Assisted Human Reproduction and Surrogacy in Irish Law was published. The review made many recommendations, including that comprehensive legislation regulating surrogacy be enacted in Ireland at the earliest opportunity.

On 10 March 2022, the Health (Assisted Human Reproduction) Bill 2022 was published. The Bill is currently before the Dáil.

The main purposes of the Bill are to:

• Put in place a specific regulatory framework for the for the provision of assisted human reproduction (AHR) treatment and related research
• Allow for the establishment of the Assisted Human Reproduction Regulatory Authority (AHRRA)
• Set out criteria for the provision of AHR treatments including posthumous assisted human reproduction and pre-implantation genetic diagnosis
• Set out the circumstances under which surrogacy may be permitted in Ireland, including that the surrogacy agreement is gestational only (that is, the surrogate’s egg is not used)
• Ensure that any child born will have a genetic link to at least one intending parent
• Under the Bill, any surrogacy agreement must also be non-commercial (altruistic) and approved by the AHRRA in advance.

In regard to international surrogacy, a Joint Committee on International Surrogacy was asked to consider and make recommendations on measures to address issues arising from international surrogacy, having particular regard to the rights, interests and welfare of children born through surrogacy (both in the future, and existing children), of surrogates and of intended parents. In July 2022, the Final Report of the Joint Committee on International Surrogacy was published.

On 13 December 2022, the Government announced that it has approved policy and legislative proposals on international surrogacy and the recognition of certain past surrogacy arrangements. The new legislative provisions will need to be further approved by Government when drafted and then inserted into the Health (Assisted Human Reproduction) Bill 2022 at Committee Stage.

For further advice or if you wish to discuss any other legal area please contact reception@lynchsolicitors.ie or telephone 052-6124344.

The material contained in this blog is provided for general information purposes only and does not amount to legal or other professional advice. While every care has been taken in the preparation of the information, we advise you to seek specific advice from us about any legal decision or course of action.

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