There are two types or surrogacy; gestational surrogacy and traditional surrogacy. For the purposes of this article I will focus on gestational surrogacy.
Gestational surrogacy is where a surrogate carries the child conceived using the egg of the intended mother or a donor egg and the sperm for the intended father. The procedure is carried out by In Vitro Fertilisation (IVF). After the child is born it is parented by the intended parents.
There is no legislation in Ireland that deals with Surrogacy and therefore there are a lot of legal implications. One legal implication is that in Ireland the Surrogate is the child’s legal parent at birth and therefore the child’s guardian.
While there is no legislation in Ireland that deals with surrogacy arrangements it is not prohibited. In Ireland surrogacy arrangements tend to be done altruistically and are not enforceable.
Internationally, there are countries where surrogacy arrangements are well regulated and many couples have chosen to travel to counties such as the Ukraine and Canada, however the process is very expensive. Aside from the guardianship complexities mentioned above, with international surrogacy the issue of citizenship also needs to be dealt with.
In Ireland as mentioned above, the woman who gives birth to the child is recognised as the child’s legal mother. For heterosexual couples and same-sex male couples, guardianship will be based on DNA evidence from the father. However, in Ireland a single woman or same sex female couple cannot seek parentage or guardianship.
Commercial Surrogacy is legal, but only for married heterosexual couples with medical evidence which confirms that for medical reasons a pregnancy is not advised.
Under Ukrainian Law;
- The child is considered to be the child of the Irish parents from conception and their names appear on the birth certificate.
- The surrogate has no parental right to the baby.
- After the child is born, DNA evidence will establish the paternity of the Irish father.
- As the father is an Irish citizen, he can apply to the Irish consulate in the Ukraine for an emergency travel certificate which permits the child to travel to Ireland with the father.
- The Irish consulate requires the father to provide an undertaking to notify the local heath centre of the child’s presence within 2 working days of arrival in Ireland and to commence the Court application within 10 working days of the child’s arrival.
In Canada commercial surrogacy is prohibited and only allows altruistic surrogacy. It permits surrogacy for heterosexual and same sex couples.
There are different law and procedures in each province and so legal advice is essential. In some provinces the intended parents’ names automatically go on the birth certificate but in others a Court Order must be obtained.
The child automatically obtains a Canadian passport and so no emergency travel documentation is required. An undertaking to carry out the Court process on return to Ireland is also not required, however, the Court process must be carried out in Ireland.
Irish Court process
The following Orders must be sought on return to Ireland and the application can be made in the Circuit Court or High Court;
- Declaration of Parentage
- Declaration of Guardianship
- Declaration of Custody
- Dispensing with the necessity for the consent of the surrogate regarding passports.
The father applies for the orders, once his parentage has been established by DNA evidence. In Ireland the surrogate is considered the legal parent and guardian of the child as she gave birth to the child. The intended mother or second parent cannot establish a legal relationship with the child until she has shared the day to day care of the child with the father for a period of two years.
The Scheme of Assisted Human Reproduction Bill 2017 sets out guidelines for gestational surrogacy in Ireland but it has not yet been made a law.
Therefore it is vitally important to take expert legal advice prior to entering into surrogacy arrangements either in Ireland or Internationally.
For further information on this important area of family law please contact Lorna McArdle or Brendan Dillon on 01 2960666