Surrogacy laws in Ireland
Surrogacy is a process when a surrogate mother consents to get pregnant and bring a child to term on behalf of another couple or individual. The surrogate mother gives the child to the couple or individual with whom she entered into the contract after its birth. The commissioning couple or the commissioning parents here is referred to as the kid’s parents, or intended parents (the adults who will raise the child).
When it comes to Surrogacy in Ireland, Intended parents must get familiar with the surrogacy laws in Ireland before kick-starting their journey in the country. For the start, surrogacy arrangements might be either:
- Domestic (the whole process takes place in Ireland)
- 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).
When a surrogate mother participates in altruistic surrogacy, she does so out of compassion and without expecting payment. When a surrogate mother carries a child for money, this practice is known as commercial surrogacy. Currently, Ireland has no laws governing surrogacy agreements, whether they are altruistic or commercial.
Is surrogacy legal in Ireland?
Ireland does not currently have any surrogacy-specific laws. So, we can say that surrogacy is neither legal nor unlawful. The unique legal complications that emerge in surrogacy are not covered by existing surrogacy laws in Ireland. Instead, the laws governing non-surrogate births address the status and legal rights of all parties involved.
In other words, the surrogate mother is the kid’s legal mother and guardian and is the one who actually gives birth to the child. Even if she is not the child’s biological mother, this is still the situation (where her egg is not used).
Additionally, in Irish law, the surrogate mother’s spouse is typically assumed to be the child’s father if she is married or was married around the time of conception (unless it is proven otherwise). Section 46 of the Status of Children Act of 1987 outlines this.
The surrogate mother and the husband will share guardianship of the child. If the surrogate mother is single, she is the child’s exclusive and legal guardian.
What impact will this have on the Intended parents?
The commissioning mother (the kid’s intended mother) has no legal relationship with the child at birth because she is not regarded as the child’s “legal mother.” She does not have the authority to decide regarding:
- Registration of births
- Identities and travel documents
- Continuity rights (for example, inheritance)
- Social service
Similarly, because the commissioning mother does not become pregnant, she is not eligible for Maternity Benefits if she is employed or for statutory maternity leave (although an employer may still offer it at its discretion). She (and her partner) might be able to apply for parental leave, though.
Obtaining legal custody and guardianship of your child
The Guardianship of Infants Act of 1964 allows the intended father to request guardianship of the kid if he is the child’s biological or genetic father.
However, even though she is the child’s biological mother, his partner does not immediately have the right to submit such an application. Instead, the partner must wait two years if the pair is married or in a civil partnership before requesting guardianship or custody rights. These two years will demonstrate to the court that the parent was in charge of the child’s care on a daily basis.
The surrogacy laws in Ireland further states that the cohabiting partner must wait three years before requesting guardianship or custody if they are not married or in a civil partnership. The surrogate mother’s status as the child’s legal mother and guardian is unaffected by this.
As an alternative, the commissioning parents can try to have a legal relationship with the kid by adopting it. If the kid is being adopted, the Irish Adoption Authority must be contacted.
There is no assurance that the commissioning parents will be given custody of the surrogate mother’s kid in this situation. Adoptions made privately are prohibited. It is illegal to pay a surrogate mother (the kid’s legal parent) to give the child up for adoption.
Future surrogacy-related legal issues that may occur
It has long been advocated that a surrogate-born kid be treated as the commissioning couple’s child rather than of the surrogate mother. The Report of the Commission on Assisted Human Reproduction from 2005 outlines this very fact. The Commission also suggested that a regulating agency be established for surrogacy and other forms of assisted human reproduction.
Since 2017, there has also been a proposal for a “Assisted Human Reproduction Bill” to control several facets of domestic surrogacy. The suggestion includes:
- The necessary conditions to become a surrogate
- The legal standing of all parties involved
- Any financial part of the surrogacy contract must be regulated.
- the consenting process.
The Bill would only be applicable to situations involving altruistic surrogacy as written (where the surrogate mother wants to help a couple conceive a child, without getting a monetary reward). Additionally, only domestic surrogacy arrangements, not those involving other countries, would be covered under the Bill. It would only control surrogacy agreements made once the law is passed.
However, the idea has still not become law, and there is no timetable for any potential legislation implementation at this moment.
A study of children’s rights and best interests in relation to parentage in situations involving donor-assisted human reproduction, including surrogacy, was ordered by the Minister for Children and Youth Affairs in 2020.
Review of Children’s Rights and Best Interests in the Context of Donor Assisted Human Reproduction and Surrogacy in Irish Law, published in April 2021, is a document that addresses these issues. The assessment makes a number of suggestions, one of which is that country must swiftly implement comprehensive surrogacy laws in Ireland.
How we can help?
At Surrogacy consultancy, we got the best team of legal professionals to help you with every possible legal hassle on your way through to parenthood. So, you just need to sit back and relax while we take care of every related aspect and element of your surrogacy journey.
Connect with one of our coordinators today for a free consultation!