By Annette Hickey | 25 August 2021

Surrogacy law must put the best interests of children at its heart

Surrogacy Ireland - Pregnant LadyWe are at a point where Ireland can produce a piece of legislation that respects parents and children in this situation, and we have to get it right

There is an urgent need for the commencement of legislation in Ireland that puts the best interests and welfare of children born through surrogacy, both international and domestic, as its paramount and primary consideration. 

In 1978, the first IVF baby in the world was born in Britain. Eight years later, the first IVF baby was born in Ireland. 

In 1985, surrogacy legislation was enacted and commenced in Britain. In Ireland today, some 36 years later, children born through surrogacy continue to exist in a limbo, having no recognised legal relationship with their second parent.

Surrogacy in Ireland has been the focus of substantial media attention during the last number of months as parents have shared their personal journeys. I would like to acknowledge and commend all of these amazing parents who are campaigning for their families and their children.

We are at a point where Ireland can produce a piece of legislation that respects parents and children, and we have to get it right.

The Minister for Health has confirmed that the commencement of assisted human reproduction legislation is a priority of the government, and that officials in his department, together with the attorney general, are actively working on the drafting of the bill. It is long overdue.

On April 23 this year, the government enacted legislation which provided an exemption from mandatory hotel quarantine for all families returning to Ireland with their children born through surrogacy. This marked the first time surrogacy had been acknowledged in Irish legislation.

In the same month, the report of Conor O’Mahony, the special rapporteur on child protection, on children’s rights and best interests in the context of donor-assisted reproduction and surrogacy, was published by the government.

The report made 27 recommendations covering issues like procedures, domestic surrogacy arrangements, right to identity, recognition of international surrogacy arrangements and retrospective declarations of parentage.

The unavoidable reality is that children will continue to be born following international surrogacy arrangements, and will be cared for by parents who may have no legal connection with the children unless the law is changed. In that context, O’Mahony recommended that the government should enact comprehensive legislation regulating surrogacy at the earliest opportunity.
The report further recommended that surrogacy legislation should make provision for the recognition of both domestic and international arrangements, but should incentivise reliance on domestic arrangements by adopting a more streamlined and less burdensome framework.

It also recommended that provision be made for a pathway to parentage in respect of surrogacy arrangements which occurred before the commencement of the new legislation.

Surrogacy is a complex process that can leave intending parents uncertain, particularly so when it involves an international surrogacy. It is of vital importance that intending parents read all of the documents they receive from a clinic or agency carefully to ensure that they include and clearly reflect everything they have discussed and agreed.

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.

Important questions which need to be asked include whether surrogacy is actually legal in the country your child is due to be born in, what relationship the surrogate mother will have with your child in the eyes of local laws, and whether the surrogacy agreement is binding and enforceable in the country of birth.

Under Irish law the surrogate mother and her husband are the legal parents of the child. It is therefore very important that court applications are made to ensure parental rights over the child, and to give the protection of the state to the child.

An application to the Irish courts will be required regardless of whether the child is born through domestic or international surrogacy. As the Irish mother is not deemed at this stage to be the legal mother of the child, the following orders must be applied for by the biological Irish father: declaration of parentage, guardianship, custody and an order dispensing with the necessity to seek the consent of the surrogate mother for the issuance of the child’s Irish passport.

There is an urgent need for the commencement of legislation in Ireland that puts the best interests and welfare of children born through surrogacy, both international and domestic, as its paramount and primary consideration.

In the absence of legislation, children born through surrogacy will continue to have a legally vulnerable status where, after their court application, they will only have a legal parental relationship with one of their parents.

We would hope that Department of Health officials will prioritise the publication of a bill which will be fit for purpose and meet the needs, requirements and interests of children, their parents and the surrogate mothers.

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