Surrogacy & Fertility Law

Domestic Surrogacy or International Surrogacy

Surrogacy is typically termed as either Domestic Surrogacy (the surrogate mother is living in and gives birth in the Irish State) or International Surrogacy (the intended parents enter into an arrangement with a surrogate mother in another country).

Because of the current legal position in Ireland, couples considering domestic surrogacy will be stepping into an unregulated surrogacy arrangement.

In Ireland the parents of a child are legally defined as the women who gives birth to the child and by the DNA of the father.

Different countries will have different arrangements in place regarding surrogacy. Some ban surrogacy completely, whereas others permit altruistic surrogacy and not commercial. Likewise, some countries will allow both altruistic and commercial surrogacy arrangements whereas others may not allow same-sex couples to receive a child through surrogacy.

The legal status of surrogacy varies from country to country. There can be surrogacy legislation in the country which includes provisions that surrogacy arrangements must comply with to be legal. There can be surrogacy legislation which prohibits surrogacy. In the absence of legislation there can be regulation, case law or it can be unregulated.

The 'unregulated' nature of domestic surrogacy in Ireland has lead to many couples exploring international surrogacy.

It is essential that intended parents look carefully at the surrogacy arrangements and fully understand the duties, responsibilities and obligations of the intended parents, their legal advisors in Ireland, their legal advisors in the country of birth, the agency and the clinic.

Take advice as early as possible so that you know what the legal requirements are and what steps you need to take in Ireland and in the country of birth throughout your surrogacy journey and after your child is born.

We would advise anyone considering surrogacy to research the legal status of surrogacy in the country of birth and also in the country of habitual residence of their surrogate. We would advise intending parents to contact the Department of Foreign Affairs and review their travel advisory for that country. Clarify with the Department of Foreign Affairs if there is an Irish Embassy or an Honorary Consul in the country of birth and what, if any, are the visa requirements for that country.

It is also important that intending parents discuss with their clinic aspects such as, whether or not they are regulated, how long is the clinic established, is the clinic regulated/accredited, who is the Doctor that will be looking after their surrogate, who is the medical team and what communication will you have with them.

With regard to the agencies, it is important to establish where is the registered office of the agency, who is the agency representative in the country of birth, what is their payment schedule, how can you ensure that the surrogate’s expenses are transferred directly to her, how do you ensure the surrogate is taken care of and being properly looked after..