Same Sex Couples: Surrogacy Options in Ireland
If you are a same sex couple and want to have a child there are four options:
surrogacy (surrogacy is an arrangement, supported by a legal agreement, whereby a woman agrees to bear a child for another person or persons, who will become the child's parent after birth)
fostering (placement of a child in care is arranged through the government or a social service agency)
adoption (legal adoptions permanently transfers all rights and responsibilities, along with filiation, from the biological parent or parents)
co-parenting (coming to an arrangement with a single women or couple to have a child together)
Surrogacy for a gay couple
When pursuing surrogacy as a gay couple you will be called ‘The Commissioning Couple’
Surrogacy can take place using any of the following:
The surrogate’s egg and the commissioning father’s sperm
Donor egg and the commissioning father’s sperm
Donor egg and sperm, or donor embryo
Irish Law - The Important Facts
The mother is the woman who gives birth. A mother cannot be defined by DNA evidence, regardless of whether or not her own egg was used.
The Father is defined by DNA evidence. The male who provides the genetic material is the father.
Surrogacy is not an option in circumstances where the father cannot provide a gamete.
Let’s discuss the process of surrogacy for a same sex male couple in Ireland where the legal situation is complicated. In Ireland, surrogacy is not prohibited but not regulated either. While surrogacy is taking place, it is not reflected anywhere in Irish law and so has to be investigated carefully. Children born to surrogates remain in a sort of legal limbo and are not recognised by the State in Ireland. Unfortunately the law is lagging, especially since the thirty-fourth Amendment of the Constitution of Ireland, allowing same sex marriage in the country to take place. Irish law is clearly now out of date and ineffective, however a huge move towards the development of legislation occurred when the Government published the General Scheme of the Assisted Human Reproduction Bill in October 2017. The General Scheme proposes to regulate gestational surrogacy in Ireland where the surrogacy meets with the criteria set out in the Bill. Release of this is pending and due out in May 2020. We expect there to be delays due to the Covid 19 pandemic.
In Ireland
Traditionally, the surrogate (the mother who gives birth) is considered the legal mother of the child and the child’s guardian, because she has given birth to the child. This is a problem as legal maternity is important for birth registration, domicile and citizenship provisions, succession, childcare provisions, adoption, social welfare and educational provisions as many of these services and rights depend on the consent of the legal mother. Many heterosexual couples in the past who had gone abroad to India for example were faced with issues upon returning to Ireland. They were unable to register the commissioning mother as the legal mother and the surrogate mother was the legal mother back in India.
There’s another issue. If the surrogate is married, then under Section 46 of the Status of Children Act 1987, the surrogate’s husband is presumed by law to be the father of the child, unless the contrary is proven. If she is not married, she is the sole guardian. DNA testing will then need to be done to confirm a genetic link to the commissioning father. If the commissioning father is the genetic father of the child, it is possible to overcome the presumption of paternity in favour of the surrogate’s husband, so as to allow the commissioning father to be recognised as the legal parent of the child. A guardianship order can then be sought by the commissioning father. Under domestic Irish law, this requires an application for a declaration of parentage to be made to the Circuit Court under Part VI of the Status of Children Act 1987.
Tip
Legally it is advised for a gay couple to engage the services of two women: one to provide the donor egg and the other to act as a surrogate to carry the baby. Why? Largely due to the fact that if not, the surrogate would then be biologically related to the child they intend to handover to the intended parents. The surrogate would be genetically related as her egg was used and she also carried the baby and gave birth. This approach makes it less complicated legally however considerably more costly.
Our advice - seek qualified legal advice both in the country where surrogacy is taking place and in Ireland in advance, to ensure that you know exactly where you stand and what you may come up against. There are Solicitors specialising in Surrogacy Law who are well versed on these laws and have first hand experience in the process.
Surrogacy Abroad
Irish couples can travel to countries such as Canada and the USA where surrogacy is legal and (for some) a lucrative practice. There are commercial surrogacy clinics abroad which facilitate surrogacy arrangements between intended parents and surrogates. Prices vary and can range from €30-150,000 depending on the country, the clinic and the treatment required. In addition to surrogacy costs through a clinic, there are other expenses to consider, such as travel expenses, medical costs, insurance, legal fees and accommodation.
Additional important factors to be aware of are the issues relating to citizenship and guardianship for a child born via a surrogate in another country. In Ireland as per the law and mentioned earlier, the woman who gives birth to the child is recognised as the legal mother. When it comes to heterosexual couples and same-sex male couples, guardianship will be based on DNA evidence from the father. Unfortunately, the way the law is in Ireland at the moment, a single woman or same sex female couple cannot seek parentage or guardianship. It is also the case were some countries allow surrogacy but only for opposite sex married couples and not same sex couples. Another reason why it is important to do country specific research. Even in countries where surrogacy is legalised, laws can vary from place to place. This is why it is so important for couples to do their own research and understand what the different laws are. Whilst the complex legal issues involved with international surrogacy can be difficult to understand, successful strategies have been developed to enable couples to become parents. The right strategy may differ from case to case, and the involvement of experienced Solicitors is advised in choosing and implementing the best route to take.
Useful Resources
The Department of Justice and Equality has published very useful guidelines in relation to citizenship, parentage, guardianship and travel document issues in relation to children born as a result of surrogacy arrangements entered into outside the state, see useful documents.
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