SURROGACY IN IRELAND
WHAT IS SURROGACY?
Surrogacy is where a surrogate mother agrees to become pregnant and carry a baby to term for another couple or individual. When the baby is born, the surrogate mother gives the baby to the couple or person with whom she made the agreement. The intended parents or parent of the child (the adults who will raise the child) are known as the commissioning couple or the commissioning person.
Surrogacy arrangements can be either Domestic (where the whole process takes place in Ireland) or International (aspects of the process happen abroad, for example, the surrogate mother conceives and gives birth to the child abroad, before the commissioning parents take the child home to Ireland).
TYPES OF SURROGACY
Altruistic surrogacy is where the surrogate mother wants to help the couple trying to conceive, without getting a financial reward. Commercial surrogacy is where the surrogate mother carries a baby in exchange for payment. Both altruistic and commercial surrogacy arrangements are unregulated in Ireland at present.
Before you choose to have a baby by surrogacy, you should get legal advice from a solicitor who specialises in family law and surrogacy arrangements.
WHOSE DNA IS USED IN SURROGACY?
Surrogacy can take place using artificial insemination (AI) or in vitro fertilization (IVF) techniques. Surrogacy can also be carried out without medical intervention.
Surrogacy can take place using either
• The commissioning mother’s egg and the commissioning father’s sperm
• The commissioning mother’s egg and donor sperm
• The surrogate mother’s egg the commissioning father’s sperm
• The surrogate mother’s egg and donor sperm
• Donor egg and the commissioning father’s sperm
• Donor egg and sperm, or donor embryo
LEGAL STATUS AND RIGHTS OF THE PARENTS
Currently, there is no specific legislation for surrogacy in Ireland which means it is not legal or illegal. Current Irish legislation does not cover the specific legal issues that arise in surrogacy. Instead, the legal status and rights of all people involved are covered by the laws dealing with non-surrogate births.
This means the surrogate mother, who gives birth to the child, is the child’s legal mother and guardian. This is the case even if she is not the biological mother of the child (where her egg is not used). Also, if the surrogate mother is married or was married around the date of conception, then her husband is generally presumed, in Irish law, to be the father of the child (unless it is proven otherwise). This is set out in Section 46 of the Status of Children Act 1987. The husband will also, along with the surrogate mother, be the joint guardian of the child. If the surrogate mother is not married, then she is the sole automatic guardian of the child.
HOW DOES THIS IMPACT THE COMMISSIONING PARENTS?
As the commissioning mother (the intended mother of the child) is not considered the ‘legal mother’, the commissioning mother has no legal connection to the child at birth. She does not have a right to make decisions in relation to:
• Birth registration
• Citizenship and passports
• Succession rights (for example, inheritance)
• Childcare
• Adoption
• Social welfare
• Education
Similarly, as the commissioning mother does not become pregnant, she is not entitled to statutory maternity leave (although an employer may still grant it at its discretion) or Maternity Benefit if she is in employment. However, she (and her partner) may be able to get parental leave.
GETTING LEGAL GUARDIANSHIP AND CUSTODY OF YOUR CHILD
If the commissioning father is the genetic or biological father of the child, he can apply for guardianship of the child under the Guardianship of Infants Act 1964. However, his partner does not have an immediate right to make such an application (even if she is the child’s biological mother). Instead, if the couple is married or in a civil partnership, the partner must wait 2 years before seeking guardianship or custody rights. These 2 years will show the court that the parent had day-to-day responsibility for the child’s care.
If the couple are cohabitating (living together but not married or in a civil partnership), the partner must wait 3 years before applying for guardianship or custody. This has no impact on the surrogate mother’s status as the child’s legal mother and guardian.
ADOPTION
Alternatively, the commissioning parents can seek to adopt the child in order to have a legal relationship with it. If the child is being adopted, this must be done through the Adoption Authority of Ireland. In this case, there is no guarantee that the child of a surrogate mother would be placed with the commissioning parents. Private adoptions are not allowed. The legal parent of a child (the surrogate mother) cannot be paid to place the child for adoption.
For anyone needing information, advice or who has an advocacy issue they can call a member of the local Citizens Information team in North Cork. Phone: Fermoy 0818 07 7970 Monday and Tuesday from 9-5pm, Wednesday and Thursday 9-1pm; Mallow 0818 07 8000 Monday, Wednesday, Thursday and Friday 9-5pm and Tuesday 9-12.30pm; Mitchelstown 0818 07 8030 – calls being answered by Mallow. Alternatively you can email us on fermoy@citinfo.ie and mallow@citinfo.ie or log on to www.citizensinformation.ie for further information.