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Guidance for couples going abroad for surrogacy services published in Ireland

5 March 2012
By Fiona Duffy
Partner in Patrick F O'Reilly & Co Solicitors, Dublin
Appeared in BioNews 647
The long-awaited guidelines for Irish couples who have children born abroad through surrogacy, issued on 21 February, have all but avoided some of the most fundamental legal issues surrounding surrogacy.

I say long-awaited because this is the first positive action taken by any minister in Ireland, in this case the Minister for Justice, Equality and Defence, since 2005. At that time, the Government-appointed Commission on Assisted Human Reproduction's very comprehensive report made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would, under Irish law, be regarded as the parents of the child.

Explained in the guidelines are the principles the Irish authorities will use to consider issues such as citizenship, parentage and guardianship when a child is born abroad through surrogacy to an Irish couple and it is intended that the child will live in Ireland.

However, they go no way towards addressing the wider, and far more complex, issues surrounding surrogacy in general. In his press release, the Minister does promise legislative proposals to deal with the complex issue of surrogacy - but only at some future, as yet undefined, date.

It also seems the guidelines have been issued as a knee-jerk response to extensive media coverage of many Irish couples being left in legal limbo following the birth of their child via a surrogate abroad.

With regards to cross-border surrogacy, it appears the Department has decided to deal with probably the most pressing issue for them - the paperwork - before dealing with the fundamental issue of surrogacy and the implications of it on all the parties involved.

According to the guidelines, to get a child born through cross-border surrogacy into Irish jurisdiction they must fulfil certain criteria.

It must first be established that the child has an Irish parent. Under Irish law the birth (surrogate) mother is deemed to be the legal mother of the child, and if she is married her husband is presumed to be the father.

This presumption can be overturned, by making an application to the Circuit Court on the child's behalf to declare the commissioning father a parent. However, this is only possible if his sperm was used. If it was not then the child may be unable to establish an entitlement to Irish citizenship, even if the commissioning mother's eggs were used.

For me this highlights an obvious oversight - the child's legal position with the commissioning mother, which remains in a legal limbo. The guidelines do not deal with how a child born through a surrogacy arrangement can establish a legal relationship with the commissioning mother, even when her eggs have been used. Under Irish law she is not recognised as the mother, and so further legislation would be required to resolve this.

It is clear from the guidelines that a passport will not be issued until paternity and guardianship has been established in a court of law. This could take months.

The best position is that the child would be issued with an emergency travel certificate (ETC), which is a discretionary relief and not guaranteed.

To ground an application for an ETC, a number of specific documents are required, including the absolute pre-requisite for establishing paternity - a DNA test. A DNA report will have to be obtained from an independent laboratory approved by the Irish passport services (no laboratories have been named) and the tests must be carried out in accordance with the guidelines. In addition to this report an affidavit must also be provided by the person taking the samples.

Furthermore, the guidelines set out certain undertakings the commissioning father will be required to give before such an ETC will be issued.

None of the documentation, affidavits or undertakings can be finalised, executed or sworn until after the child is born, and an ETC cannot be issued until all the paperwork is in order. This could cause severe delays for the couple concerned.

While the guidelines are to be welcomed, and it is to be commended that the Government has finally taken a first step to address this thorny issue, they do not go far enough in bringing clarity to what is an extremely complex and emotive process.

On the positive side, the guidelines are, if nothing else, an acknowledgment by the state that the subject of surrogacy needs to be addressed.

However, this is only one of the many delicate aspects of fertility, assisted human reproduction, families and the rights of individuals that urgently need to be given statutory protection and regulated in Ireland.

17 December 2018 - by Georgia Everett 
A new study into the experience of British families who undertaking surrogacy arrangements has shed light on the reasons some seek a surrogate in the UK while others choose to go abroad...
28 January 2013 - by Nina Chohan 
An Irish couple has brought a legal challenge against the State for refusing to remove the surrogate mother from their children's birth certificates and to register the genetic mother as a legal parent...
23 April 2012 - by Dr Lux Fatimathas 
Former shadow health secretary Mr John Healey has called for mothers of children conceived using a surrogate to be given equal maternity pay, leave and rights as other mothers. Currently mothers who use surrogates are entitled to 13 weeks unpaid leave, in contrast to mothers who adopt or conceive themselves, who are entitled to 52 weeks leave with 39 weeks maternity pay....
12 March 2012 - by Ruth Retassie 
A Tel Aviv family court judge has set a precedent by recognising a woman whose twins were born via a surrogate as the legal parent...
20 February 2012 - by Natalie Gamble 
The family court has been making law on known donors, with a number of recent disputes between known sperm donors and lesbian mothers...
16 January 2012 - by Dr Rebecca Robey 
Acting as a surrogate does not negatively affect the psychological wellbeing of the surrogate's own children, according to a new study from the Centre for Family Research, University of Cambridge....
21 November 2011 - by Antony Starza-Allen 
An advisor to the Irish Government on child protection has expressed his 'profound concern' that failing to legislate in the area of assisted reproductive technologies (ART) may result in children's rights being violated....
4 July 2011 - by Louisa Ghevaert 
Assisted reproduction in the form of IVF, donor conception and surrogacy is challenging global attitudes towards medical science and is presenting a unique global regulatory challenge....
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