In recent years, despite there being no formal surrogacy legislation in Ireland, there has been a huge surge in interest from couples considering surrogacy as an alternative route to parenthood.
The Surrogacy & Fertility law team at Poe Kiely Hogan Lanigan Solicitors has represented many of these intending parents as they pursue their dream of becoming parents through Surrogacy. The lack of legal clarity, however, has meant that now more than ever, it is essential for anyone considering surrogacy to ensure that they are as fully informed about the process as is possible.
Do Your Research
This involves undertaking thorough research and asking questions of the clinic/agency they choose to engage with and to complete their own due diligence in relation to the entire process. In other words, do not base decisions which will impact upon your future family on hearsay.
It may sound trivial, however, it is of vital importance that intending parents read carefully all of the documents they receive from a clinic/ agency to make sure that they actually include and clearly reflect everything they have discussed and agreed. The last thing anybody wants is a surprise during such a sensitive and emotional process.
At Poe Kiely Hogan Lanigan, we advise our clients to retain an independent lawyer in the country of birth, should they be considering International Surrogacy, in order for their foreign lawyer to review and provide legal advice in relation to these documents and any agreements with organisations in the country involved.
Agree & Document Everything In Advance
It is our experience, and given the fact that a human life is involved, that everything needs to be clearly agreed and documented well in advance rather than the heart ache, and indeed expense, should a situation occur that conflicts with the intending parents expectations.
Important questions which need to be asked include fundamentals such as if surrogacy is actually legal in the country your child is due to be born in and what the relationship the surrogate mother will have with your child in the eyes of local laws. For example, is your surrogacy agreement, and the terms included within it, actually enforceable and can it be relied upon in Court should someone change their mind and what (often complex) procedures exist in terms of leaving the country and travelling home with your new born child? These are some of the important questions which you will need to know the answers to before you pay any money and commence the surrogacy process.
In some countries the surrogacy process is well supported and you may have to apply to their Courts in order to complete the process, although unfortunately this can differ from country to country. For example, in Greece the process will take place during the pregnancy, whereas in Canada and the USA, it will take place after the baby is born. It is therefore important that the lawyer you have chosen in the country of birth advises you clearly and fully about these very important court procedures.
It should also be noted that your lawyer (in the country of birth) must remain independent and cannot represent the surrogate mother or advise her regarding the Irish court proceedings that will need to be completed after you have returned to Ireland with your baby.
Whilst all theses various steps may seem quite complex the reward will be immense when you finally hold your baby for the very first time.
Returning To Ireland With Your New Born Baby
Returning to Ireland, it is important to note once again that there is no surrogacy legislation in place and you will therefore need to ensure you are aware of the various implications of the current legislation and how it will be interpreted in terms of your surrogacy arrangements.
For example, in Ireland, it is the woman who actually gives birth to a child who is deemed as the “mother” with legal responsibility for the child. In other words, the “mother” is not defined by DNA evidence. The implications of this are that even if the Irish woman is biologically related to the child but has not given birth to the child she is not legally defined in Ireland as the mother.
The opposite of this is true in terms of the Father’s paternity as this is decided by DNA evidence with the essential proof required by Irish Courts being a DNA test result showing that the father is the biological parent of the child.
The Irish Legal Process
When surrogacy is pursued as a route to parenthood either through Domestic Surrogacy (where the baby is born in Ireland) or International Surrogacy (where the baby is born overseas) an application to the Irish Courts will be required. This will involve various Orders being applied for, including:
- Declaration of Parentage
- Guardianship Order
- Custody Order
- An Order dispensing with the necessity to seek the consent of the surrogate mother for the issuance of the child’s Irish passport.
As the Irish mother is not deemed at this stage as the legal mother of the child, these Orders must be applied for by the biological Irish father.
Following the Father’s application, Irish Court proceedings will be served on the Surrogate Mother and her independent lawyer in the country of birth along with the Office of the Chief State Solicitors Office who will be joined to the proceedings as a Notice Party. The Chief State Solicitor Office will in turn provide a list of the proofs they require to be complied with before they will confirm to the Court that they are not objecting to the Irish father’s application.
It is important to point out that this court application can be listed in either the Family High Court or Circuit Family Court, however, as the proceedings are complex and a specialised area of the law they will be held “In Camera” (i.e. they will take place privately with no identifying information or details published). The intended parents and the legal representatives will be the only parties allowed to attend in the Court and The Court Orders will usually be issued to their solicitor’s office approximately a week to 2 weeks after the Court has ruled.
Owing to the complexities of the surrogacy process, the very emotional nature of the circumstances and the lack of formal legislation on the matter, it is important that any Irish couple considering Surrogacy as a route to parenthood in Ireland engages only with a solicitor who is actually experienced in Surrogacy matters and has acted for a number of parents in this regard. We would therefore urge intending parents to ask their Irish lawyer for details of their experience in Surrogacy related matters. They should also join a number of WhatsApp and Facebook groups to receive not just advice but the practical and emotional support that an intending couple will undoubtedly need as they progress through the entirety of their Surrogacy journey.
The Surrogacy & Fertility law team at Poe Kiely Hogan Lanigan Solicitors is one of the most experienced Surrogacy law practices on the island of Ireland and it is our strong belief that it is best, and often much more efficient, to take your legal advice as early as possible in the process so that you know and understand all of the legal requirements and the steps you need to take both in Ireland and in the country where your child is to born.
If you would like any further advice or to arrange a consultation by telephone or Zoom, please do not hesitate to contact us by email: firstname.lastname@example.org, telephone: 056-7721063, or visit our website: www.pkhl.ie where we have numerous articles and resources available to download for free.