By Annette Hickey | 27 September 2018

Is It Possible To Short-Circuit The Surrogacy Process In Some Countries?

In the course of my work with couples looking to start a family through surrogacy, there is often a commonly held misconception that clinics in the USA and Canada can speed up the process by doing everything for intending couples under one arrangement. A “one-stop-shop” for surrogacy so to speak.

PKHL-surrogacymisconceptionsWhilst most clinics will be able to provide for the majority of an intending parents needs throughout the duration of the surrogacy process, certain steps, such as applying to the Irish Courts, cannot be circumvented. No matter what you may have been told, you will still need to do this if, for example, you want to become the child’s legal guardians in Ireland.

Owing to the fact that children born in the USA are entitled to receive a USA passport and children born in Canada a Canadian passport, this often leaves intending parents believing that they no longer need to do anything else in relation to the child’s legal status.

In this regard, it is important to note that under Irish Law, the mother of a newborn child is the woman who physically gives birth to a child. This means that presently, under Irish law, the Surrogate will still be “the mother” and the automatic guardian of the child, irrespective of where the surrogacy arrangement was made.

Furthermore, under Irish Law, as the father of the newborn child is not married to the person recognised as the mother of the child, they will not become the automatic guardian of the child either - even if their DNA has been used!

If the Irish intending parents therefore return from Canada or the USA with the child and decide not to make an application to the Irish Courts for:

  1. A Declaration of Parentage;
  2. Guardianship; and
  3. Sole custody in favour of the father,

the child will be in Ireland without a legal guardian.

At Poe Kiely Hogan Lanigan we would suggest a prudent approach to matters such as these and ensure that appropriate applications are made to the Irish Courts at the earliest opportunity to ensure the child has all the recognitions and protections provided by Irish Citizenship and the presence of a guardian within the jurisdiction.

We would therefore suggest that no matter what advice has been received in the surrogate’s country of origin, intending parents should speak to an Irish lawyer experienced in Surrogacy law to explain the process, and where appropriate, make the necessary applications to the Irish Courts.

Regardless of the child’s place of birth, it is also recommended that Irish citizenship should be formalised by way of an application for an Irish Passport.

If you have any questions in relation to starting a family through surrogacy, please do not hesitate to get in touch for a free and confidential initial consultation. Alternatively, you may be interested in our Surrogacy Event taking place on 13 October in Kilashee House Hotel, where a range of experienced speakers will share their knowledge of the surrogacy process.

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Written By Annette Hickey

Annette has exclusively practised family law in the litigation department for the past 10 years and heads up the firm's Surrogacy & Fertility law team.

She is highly respected and regarded for her expertise and knowledge of fertility law, surrogacy and same-sex family matters. Diligent, thorough and empathetic, Annette brings a wealth of experience, sensitivity and understanding to our team.

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"Annette, Ger and her team were the calm oasis of advice, encouragement and legal clarity that helped us at every crucial stage, to realise our dream of bringing our precious baby home. The energy, pace and sense of urgency with which Annette drove our case for completion through the courts was breathtaking and we will forever be grateful for her support in safely guiding our family from our dream of becoming parents again to the reality holding baby in our arms."

Brian and Kathy Egan - Surrogacy & Fertility Law