General Information

A surrogacy arrangement is an agreement between a woman and intending parents under which the woman agrees to become pregnant by use of an egg other than her own and, if successful, transfer parentage of any child born as a result of the pregnancy to the intending parents.

When a child is born via surrogacy, whether in Ireland or oversees, the surrogate is recognized as the only parent and automatic guardian of the child at birth. If she is married there is a presumption that her husband is the child’s father.

This presumption is rebutted after DNA tests prove that the intending father is the biological father of the child and that the surrogate’s husband has no biological relationship with the child.

There are currently no international agreements which govern the minimum standards surrogacy arrangements must meet. Any intending parent considering pursuing an international surrogacy journey must remember that they and any child born as a result of a surrogacy arrangement will in Ireland be subject to Irish law.

When these past surrogacy arrangement provisions in the legislation commence the child must be born or the intending parents must have both a signed agreement with their surrogate and an embryo transfer must have taken place prior to the date.

If the surrogate is married her husband continues to be presumed to be the father of the child until a DNA test proves that the intending father is the biological father.

The legislation does include provisions that remove this presumption after the AHRRA is established in international surrogacy arrangements.

The legislation does not include any provisions which provide detail regarding birth certificates or surrogacy certificate’s of children born through surrogacy after the legislation is enacted and commenced.

The legislation does not include any provisions which provide any detail regarding maternity benefit, maternity leave or the entitlement of intending parents to social protection or employment protection after the legislation is enacted and commenced.

Domestic Surrogacy

In a domestic surrogacy arrangement the surrogacy arrangement and birth of the child takes place in Ireland.

There are currently no residence requirements for the intending parents or a surrogate when a Declaration of Parentage application is listed before the Irish Court. The child must be habitually resident in Ireland in order for an application for a Guardianship Order to be listed.

The past surrogacy arrangement provisions require that both the surrogate and intending parents must be for not less than one year (or such longer period as may be prescribed) habitually and lawfully resident in Ireland prior to entering into a surrogacy agreement. After the Assisted Human Reproduction Regulatory Authority is established the resident requirements increase from one to two years.

The embryo transfer for all but very few domestic surrogacy arrangements currently take place in fertility clinics outside of Ireland. After the birth of the baby, the surrogate together with the biological father can apply to have both of their names listed on the birth certificate.

Domestic Surrogacy Arrangements

A domestic surrogacy agreement is a document signed by the surrogate and intending parents before assisted human reproduction treatment takes place. The agreement includes details of all matters associated with the surrogacy arrangement.

Both parties should have received independent legal advice prior to signing a domestic surrogacy agreement. The responsibility and obligations of the parties to a domestic surrogacy agreement are not enforceable in an Irish Court.

The process of discussing and agreeing the terms of the agreement concentrates the intending parents’ minds and the surrogates mind regarding the various issues that could occur, encourages discussion between the parties and ensures that before the domestic surrogacy agreement is signed, all parties are in full agreement regarding all possible issues and matters that could arise throughout the surrogacy before any treatment has commenced.

After the legislation is commenced, the surrogate will continue to be recognized as the child’s only legal parent at birth. After birth the surrogate and intending parents can swear a declaration where they agree to the intending parents being guardians of the child from birth with the surrogate. The surrogate’s husband is no longer presumed to be the child’s father.

The Court will, subject to the application complying with the legislative provisions, receipt of the required consents to the application and after judging the order to be in the best interests of the child, grant the parental order to the intending parents. The effect of the grant for parental order is the transfer of parentage of the child from the surrogate to the intending parents.

Where the biological father has applied for and received his Declaration of Parentage previously from the Court, the grant of the parental order to the intending parent will not affect his order or parental relationship with the child. The application for parental orders pursuant to the “past domestic surrogacy arrangement provisions in the legislation must be listed before the Court no later than three years from the date of commencement of the provision or six months from the date of birth of the child, whichever is the later.

This means that if the application is not listed within that time period, the application for a parental order cannot thereafter be applied for.

There are currently no provisions in the Bill that provide details of the requirements and procedures that must be complied with by intending parents where embryo transfers take place after the commencement of past surrogacy arrangements provisions and before the establishment of the Authority.

After the AHRRA has been established a pre-conception approval authorization will be required from the AHRRA before the parties can proceed with a permitted surrogacy arrangement.

International Surrogacy

Its essentially important that before intending parents start their international surrogacy journey they have confirmed that they are eligible to pursue surrogacy in the surrogacy jurisdiction and they know how their baby will get home.

If your baby is entitled to a passport from the country of birth, your lawyer in that country should provide you with advice and guidance on the procedure that needs to be followed in order to apply for that passport. Its important that its clarified whether there are any Irish immigration visa requirements that you need to comply with.

If your baby will need an emergency travel certificate from the Department of Foreign Affairs its essential that you have read the guidance document for Irish couples pursuing surrogacy arrangements abroad published in 2012 by the Department of Justice. The biological parent must be an Irish citizen. If the biological parent is not an Irish citizen they are not eligible to apply for an ETC for their baby.

Each application to the Department of Foreign for an ETC is reviewed by the Department of Foreign Affairs on its own merits and own factual situation. The Department of Foreign Affairs will issue their documentary requirements to intending parents. If the biological father is an Irish citizen but was not born in Ireland the baby’s birth must be registered with the foreign birth registration after the Irish Court order is granted before an application for an Irish passport will be processed.

The Department of Foreign Affairs recognise the DNA test result from Ormond Quay Paternity Services when considering an application for an ETC. The DNA test result from Ormond Quay Paternity Services is also recognised by the Irish Court as evidence of a biological link.

The baby’s birth certificate will issue from the registrar in the surrogacy jurisdiction where the baby is born. The birth certificate from the surrogacy jurisdiction is not recognised as legal proof of parentage in Ireland. Birth certificates can name the surrogate and biological father or both intending parents. This varies and is dependent on the local law and regulations in the surrogacy jurisdiction.

Agencies & Intermediaries

Agencies and intermediaries are usually not subject to regulation. The agreements you sign with the agency may not have any binding or legal effect. An agency representative may make promises to intending parents, may give sweeping legal reassurances about the legal status of your surrogacy arrangements in the surrogacy jurisdiction, may encourage you to move forward with your surrogacy journey without first receiving independent legal advice from a surrogacy solicitor in Ireland and an independent lawyer in the surrogacy jurisdiction.

If your agency representative suggests that you seek legal advice from a particular lawyer you need to get confirmation that the suggested lawyer is not associated or connected with the agency in any way and hasn’t previously and doesn’t currently benefit from any financial arrangement with the agency.

You can’t take at face value what you read about an agency or intermediary, unfortunately some of the posts and testimonials from parents on the agency’s website or in the various forums may have been generated by the agency themselves.

After the legislation commences the biological link between the child and the intending parents can be with either the female intending parent or male intending parent.

This biological link is essential before the intending parents can apply to list an application to the Court for parental orders.

The responsibilities and obligations of intending parents and surrogates as detailed in an international surrogacy agreement are not enforceable in Ireland.

After the establishment of the AHRRA all surrogacy arrangements must be altruistic. Commercial surrogacy arrangements are prohibited. The surrogate should only receive reimbursement of her reasonable expenses associated with becoming or trying to become pregnant, pregnancy or birth and entering into a surrogacy arrangement.

An expense is reasonable if it’s actually incurred and the amount of the expense can be verified by receipt or other documentation.

There are currently no residence requirements for the intending parents or a surrogate when a Declaration of Parentage application is listed before the Irish Court.

The child must be habitually resident in Ireland in order for an application for a Guardianship Order to be listed.

The past international surrogacy arrangement provisions require that the surrogate must be for not less than one year (or such longer period as may be prescribed) habitually and lawfully resident in the surrogacy jurisdiction prior to entering into a surrogacy agreement and the intending parents must be for not less than one year habitually and lawfully resident in Ireland.

After the AHHRA is established the resident requirements increase from one to two years.

After the legislation commences the Court will, subject to the application complying with the legislative provisions, receipt of the required consents to the application and after judging the order to be in the best interests of the child, grant the parental order to the intending parents.

The effect of the grant for parental order is the transfer of parentage of the child from the surrogate to the intending parents. Where the biological father has applied for and received his Declaration of Parentage previously from the Court, the grant of the parental order to the intending parent will not affect his order or parental relationship with the child.

The application for parental orders pursuant to the “past international surrogacy arrangement provisions in the legislation must be listed before the Court no later than three years from the date of commencement of the provision or six months from the date of birth of the child, whichever is the later.

This means that if the application is not listed within that time period, the application for a parental order cannot thereafter be applied for.

There are currently no provisions in the Bill that provide details of the requirements and procedures that must be complied with by intending parents where embryo transfers take place after the commencement of past surrogacy arrangements provisions and before the establishment of the AHRRA.

THE COURT PROCESS

The process before past surrogacy arrangement provisions are enacted and commenced.

Pending the enactment and commencement of legislative provisions that provide for applications to the High Court for parental orders for intending parents the issue of legal parentage of children born through surrogacy involves an application to the Irish Court under other family law legislation. The application must include a DNA test result evidencing the biological link between the child and the biological father. The surrogate cannot be biologically related to the child.

The biological father applies for a declaration of parentage, guardianship and custody orders and also an order dispensing with the necessity to seek the surrogate’s consent to the issuance of an Irish passport for the child. The Court proceedings are served on the surrogate, her husband (if she is married), their independent lawyer and the Irish Chief State Solicitors office. If the surrogate’s native language is not English the proceedings must be translated into her native language by a certified translator before they are explained to her by her independent lawyer. The Chief State Solicitors Office represents the Attorney General in the court proceedings. After service of proceedings on the Chief State Solicitors office they will issue a list of the documents and proofs that they require. Currently these applications can be listed in the Circuit Court or the High Court.

The second intending parent (non biological parent) can not apply for a declaration of parentage. After the second parent has shared the day to day care and rearing the child with the biological parent they can apply to the Court to become a guardian of the child.

The process after past surrogacy arrangement provisions are enacted and commenced

Past surrogacy arrangements - both the agreement with the surrogate has been signed and the embryo transfer must has taken place before these provisions commence.

These applications will be listed before the High Court. The application must include a DNA test result evidencing the biological link between the child and at least one of the intending parents. The surrogate cannot be biologically related to the child.

The intending parents apply for parental orders. The Court proceedings are served on the surrogate, her independent lawyer and the Irish Chief State Solicitors office.

If the surrogate’s native language is not English the proceedings must be translated into her native language by a certified translator before they are explained to her by her independent lawyer. The Chief State Solicitors Office represents the Attorney General in the court proceedings. After service of proceedings on the Chief State Solicitors office they will issue a list of the documents and proofs that they require.

The High Court may grant a parental order if satisfied that the past surrogacy arrangement complies with the legislative provisions, the intended parents, the surrogate and the child born through the surrogacy arrangement (subject to the age of the child) all consent to the granting of the parental order, the intending parents and surrogate comply with the residence requirements and the court determines that the granting of the order is in the best interests of the child.

The consent must be voluntarily given and only after the person has received independent legal advice about the legal implications of giving such consent. The Court may waive the consent requirement if the person is deceased, can’t be located after reasonable efforts have been made or the person lacks the capacity to provide consent.

In considering what is in the child’s best interest the Court will have regard to the child’s age, maturity, the physical, psychological and emotional needs of the child, the likely effect of the granting of the parental order on the child, the child’s social, intellectual and educational needs, the child’s upbringing and care, the child’s relationship with his or her intending parents and any other particular circumstances pertaining to the child.

The effect of the grant for parental order is the transfer of parentage of the child from the surrogate to the intending parents.

Where the biological father has applied for and received his Declaration of Parentage previously from the Court, the grant of the parental order to the intending parent will not affect his order or parental relationship with the child.

The application for parental orders pursuant to the past surrogacy arrangement provisions in the legislation must be listed before the Court no later than three years from the date of commencement of the provision or six months from the date of birth of the child, whichever is the later.

This means that if the application is not listed within that time period, the application for a parental order cannot thereafter be applied for.

There are currently no provisions in the Bill that provide details of the requirements and procedures that must be complied with by intending parents where embryo transfers take place after the commencement of past surrogacy arrangements provisions and before the establishment of the Authority.

The application for a parental order must be made not later than three years after the commencement of the provision in the Act or six months from the birth of the child, whichever is the later. This time can be extended by Court if there are exceptional circumstances or so doing or it is in the best interests of the child.

When the Court grants a parental order the parentage of the child born through surrogacy is transferred from the surrogate to the intending parents. However this parental order does not affect any order previously made granting a declaration of parentage in respect of the biological parent.

Note: This section does not include detail about the parental order process for permitted surrogacy arrangements following pre conception approval after the Assisted Human Reproduction Regulatory Authority has been established

THE ASSISTED HUMAN REPRODUCTION REGULATORY AUTHORITY (“AHRRA”)

After the AHRRA is established intending parents will be required to apply to the AHRRA for pre-conception approval for a permitted surrogacy arrangement before any assisted human reproduction treatment takes place.

The AHRRA may after consultation with the Minister for Health and Minister of Foreign Affairs by order approve a surrogacy jurisdiction in which international surrogacy may be undertaken.

Included in the issues that will be considered in deciding whether a surrogacy jurisdiction will approved is a consideration of the law in the jurisdiction relating to surrogacy including whether or not commercial surrogacy is permitted, whether the intending parent is required to be resident or domiciled in the jurisdiction, the ability of the AHRRA to monitor compliance with the provisions of the legislation of an international surrogacy arrangement undertaken in that jurisdiction, the law relating to military or potential civil or military actions, the law in the jurisdiction relating to medical professionals undertaking surrogacy in the jurisdiction, the law in the jurisdiction relating to intermediaries, whether there is a regulatory authority providing oversight of intermediaries in the jurisdiction and the extent to which the rights for pregnant women including surrogates as regards their health, privacy and bodily autonomy.

The fertility clinic/ AHR treatment provider must provide an undertaking to the AHRRA that the treatment provided pursuant to the agreement will only involve the transfer of a single embryo.

The intending parents must undertake that they will apply to the Court for a parental order in respect of any child born pursuant to the surrogacy agreement.

The AHRRA will not provide a pre-conception approval authorisation if they are not provided with evidence that both the surrogate and intended parents have received AHR counselling and independent legal advice, that the intended parents, surrogate and relevant doner (if applicable) haven’t voluntarily provided their informed consented to the recording of their information with the National Surrogacy Registrar and the AHRRA hasn’t received an assessment that satisfies the AHRRA that the intending parents don’t present a potentially significant risk of harm or neglect to the child who will be born through the surrogacy arrangement or any other child.

After a Parental Order has been granted, the Court will provide a copy of the Order to the AHRRA who will make an entry in the National Surrogacy Registrar. The entry in the registrar shall contain information in respect of the child, the surrogate, donor (if relevant) and the parents.