Surrogacy is lengthy and extremely complex from a legal point of view and there is currently no legislation regarding this in Ireland. However, it is currently being debated by the Oireachtas. Medical indications for surrogacy in Ireland occur when women are born without a uterus oar to sustain damage to or loss of their uterus from cancer or surgery or hemorrhage in pregnancy.
Other women have serious medical conditions where pregnancy could be fatal for them and their babies. A specific and rare cause of infertility and recurrent miscarriage where surrogacy may be advised is another reason. Same-sex male couples, single men, and transgender women also require surrogacy in Ireland, if they wish to have a family. Irish IVF clinics are usually licensed to provide domestic surrogacy. However, under extremely strict requirements. There must be a definite medical indication for surrogacy and patients must also have a suitable family member or a close friend who is willing to be a surrogate mother.
There are strict requirements also for the surrogate. All of those involved must be residents of Ireland and all must be willing to receive legal advice and attend counseling. For Irish couples seeking surrogacy abroad, the National Infertility and Support Group has outlined important advice on international surrogacy.
Different countries and different surrogacy agencies in Ireland offer surrogacy programs, here is some cautionary advice regarding details and information to be fully aware of.
- Choosing a reliable EU agency will protect you from any issues which might come along the way. Surrogacy is a lengthy process and is not cheap at all.
- The local legal requirements and legal procedures regarding surrogacy in the country of birth.
- Whether there is an Irish Consulate or Irish Embassy in the country of birth or where the nearest Irish Consulate or Irish Embassy is.
- Whether your child is entitled to a passport from the country of birth which allows him/her to travel home with you to Ireland or whether you need to apply to the Irish authorities for an emergency travel certificate.
- If you need to apply for an emergency travel certificate you will need written confirmation of the requirements and procedures that need to be followed from the Irish consulate/Irish embassy in the country that will be issuing the emergency travel certificate.
- Written confirmation from the clinic and the surrogate mother’s legal advisor that any affidavits and documentation that are required by the Irish Court as part of your court application will be provided.
- Another tip is that you should ask the clinic to email you the details regarding their experience of working with Irish couples and also their understanding of the requirements of the Irish authorities and the Irish court procedure.
- You should always seek legal advice and guidance from an Irish solicitor that has assisted Irish couples and can provide you with legal advice and guidance.
Currently, Irish children who are born through surrogacy to either opposite-sex couples, same-sex couples, or couples/individuals who have medical and/or fertility challenges have no legal relationship with their parents once they arrive home in Ireland.
Even if a parent provides their egg to the surrogate, the person who gives birth is designated as the legal mother of the child. Under these circumstances, the second parent can apply for legal guardianship when the child is two-years-old, but this guardianship terminates when the child is 18.
The journey for parental rights is very long and costly, often leaving the child vulnerable for years. The newly established Oireachtas committee will recommend transferring the parentage from the surrogate to the intended parents in case of international surrogacy. Irish parents who underwent international surrogacy in Ireland have not had any legislation for 20 years to recognize both parents and ensure that these children born through surrogacy are being legally protected like any other Irish child.
The recommendations of the Oireachtas committee include:
- International surrogacy arrangements should be permitted under Irish law once the agreement and process have taken place in a jurisdiction that does not prohibit the practice.
- Independent legal, medical and psychological advice must be given to the surrogate, and proof of the same offered to Irish authorities.
- The agreement needs to be in writing and includes a financial plan to include all payments to the surrogate, medical clinics, and any other third parties.
- A compensated model which follows the current framework in the AHR Bill is recommended by the committee which would see the surrogate reimbursed for reasonable expenses.
- Once these steps are followed pre-conception the intended parents would need to submit proof of the same to the newly created AHHRA for pre-conception approval. Then a court application could be submitted where the surrogate gives her consent at a remote hearing between day 7 and day 21 after birth. Once complete a parental order could be issued to the intended parents.
- It is recommended that the rules on citizenship in the case of children born through international surrogacy to Irish parents should be amended to offer
Because the process was previously unregulated, thousands of couples in Ireland face challenges regarding their legal parental status. This is particularly problematic when parents are expected to sign official documents related to vaccinations, bank accounts, or passports. In these cases, only the legally designated parent is allowed to sign for their child.
Now thousands of couples across Ireland are celebrating the new international surrogacy legislation that is underway. The amendments currently announced will impact thousands of parents in same-sex relationships in Ireland. Many LGBTQ+ couples pursue international surrogacy because it is the only option for couples who want to have a biological child if neither person can carry a pregnancy.
The bill amendments which are currently going through Dial aim to grant full legal rights to both existing and prospective couples of children born through international surrogacy. Advocates hope that the amendments will gain cross-party support and that the legislation will be passed in the courts early next year.