In April 2021 the Government enacted legislation which provided an exemption from mandatory hotel quarantine for families returning to Ireland with their children born through surrogacy. This marked the first time surrogacy had been acknowledged in Irish legislation.
In April 2021 Professor Conor O’Mahony’s, Special Rapporteur on Child Protection, Report “A Review of Children’s Rights and Best Interests in the Context of Donor Assisted Human Reproduction and Surrogacy in Irish Law” was published by the Government. The Report recommends that the 27 measures be implemented in order to safeguard children’s rights and best interests in the context of DAHR procedures and surrogacy arrangements. The Report includes recommendations regarding parentage DAHR procedures, parentage and domestic surrogacy arrangements, right to identity, recognition of international surrogacy arrangements and retrospective declarations of parentage.
The Report comments that the unavoidable reality is that children will continue to be born following international surrogacy arrangements and to be cared for by intending parents who may have no legal connection with the children. The Report recommends that the Government should enact comprehensive legislation regulating surrogacy at the earliest opportunity. The Report further recommends that surrogacy legislation should make provision for the recognition of both domestic and international surrogacy arrangements and should incentivise reliance on domestic arrangements by adopting a more streamlined and less burdensome framework than for international arrangements. The Report also recommends that provision should be made for a pathway to parentage in respect of surrogacy arrangements which occurred before the commencement of the new legislation.
The Report also recommends that legislation governing domestic surrogacy arrangements should allow for altruistic surrogacy only with detailed provisions governing the payment of reasonable expenses and provision for a Court application prior to conception of the child that would combine advance authorisation of the arrangement and a pre-birth parental order.
In relation to international surrogacy arrangements, the Report recommends that legislation should make provision for the High Court on the application of the intended parents to grant parentage and parental responsibility to the intending parents and nationality and citizenship to the child where the Court has satisfied itself of a range of prescribed criteria. The Report further recommends that legislation should stipulate that such applications should be made before the child is brought into the jurisdiction.
The Report also recommends that retrospective declarations of parentage in respect of children born through surrogacy arrangements should also be provided for where the Court has satisfied itself of a range of prescribed criteria.
Surrogacy in Ireland has been the focus of substantial media attention during the last number of months as parents through surrogacy throughout the country have shared their personal journeys through both national and regional radio and print media. We would like to acknowledge and commend all of these fantastic parents who are campaigning for their families and their children.
In 1978 the first IVF baby born in the world was born in the UK. In 1986 the first IVF baby was born in Ireland, only 8 years only. In 1985 surrogacy legislation was enacted and commenced in the UK. In Ireland in 2021, some 36 years later, Irish children born through surrogacy continue to be born in a legal limbo having no parental recognised legal relationship with their second parent. The Minister for Health has confirmed that the commencement of Assisted Human Reproduction legislation is a priority of the Government and that officials in the Department of Health together with the Office of the Attorney General are actively working on the drafting of the Bill.
