Surrogacy in Ireland
What Are The Regulations in Ireland?
At the moment we have no laws governing surrogacy. Surrogacy is neither legally prohibited nor permitted here. There is a draft law in the pipeline but at the moment - a long way off. Surrogacy continues to happen in a legal vacuum at the moment and we don’t know how many people are going down the surrogacy route because a lot of people are going privately and abroad for treatment.
What Stage Is The Bill At in Ireland?
The legislation is being drafted by The Office of the Attorney General and the Joint Oirochteas Health Committee has been holding hearings so they will give their recommendations at the summer recess in 2020. As there are a lot of legal and ethical considerations to be made, it may take more time. It appears that the legislation is going to be based upon the UK Human Fertilisation and Embryology Authority regulations already enacted there.
What Is Surrogacy?
Surrogacy is an arrangement, supported by a legal agreement, whereby a woman (the surrogate mother) agrees to bear a child for another person or persons, who will become the child's parent(s) after birth. There are two types of surrogacy options available.
Traditional surrogacy is where the surrogate carries a child conceived using her own egg and sperm from the intended father. Artificial insemination is used, and the surrogate is genetically related to the child.
Gestational surrogacy is when the surrogate carries a child conceived using the egg of the intended mother or egg donor and sperm from the intended father. In Vitro Fertilisation (IVF) is used, and the surrogate is not genetically related to the child. Surrogacy is neither legally prohibited nor permitted here in Ireland. This can lead to legal complications down the line.
Gestational
Intended mother’s own eggs or donor eggs used with intended fathers sperm or donor sperm.
In Vitro Fertilisation (IVF) is used
Surrogate not genetically related to child
Surrogate is child’s legal parent at birth (in Ireland)
Traditional
Surrogate’s egg used with intended father’s sperm or donor sperm
Artificial Insemination (AI) is used
Surrogate genetically related to child
Surrogate is child’s legal parent at birth
Reasons for surrogacy may be due to:
Cervical Cancer
Conditions like Cystic Fibrosis
Same Sex Relationships
Recurrent Miscarriages
Is it possible to have domestic surrogacy in Ireland?
Yes. Domestic surrogacy is available if the infertile couple can find a surrogate who wishes to carry their child. The new Bill is set to state that surrogacy will be allowed once done on an altruistic basis (meaning no financial gain for the surrogate). Agreements regarding compensation for medical bills, accommodation, time away from work, can be arranged between the parties but surrogacy agreements are not enforceable in Ireland. There are some criteria to be filled. A surrogate must be resident in Ireland, have previously given birth to a child and be aged 25 and 47 years of age. The surrogate must also be assessed by a doctor and counsellor before an application for authorisation is made to the Regulatory Authority.
Surrogacy Abroad
Surrogacy remains a bit of a legal grey area in Ireland as there is no legislation. Despite this surrogacy is becoming a viable fertility option for more and more couples. Kim Kardashian, Sarah Jessica Parker, and Georgia Penna have all opted for a surrogate. In Ireland, Rosanna Davidson recently spoke out about her surrogacy journey on the late late show (watch it here). She travelled to the Ukraine, where commercial surrogacy has been legal since 2000. Last year, the Department of Foreign Affairs revealed that 23 babies born in the Ukraine were flown back to Ireland with emergency travel certificates. For many families, the Ukraine is a more cost effective option than travelling to North America. Also under Ukrainian law, the baby is considered to be the child of the Irish parents from the moment of conception and their names appear on the birth certificate. This is an important factor as it eliminates the risk of a surrogate changing her mind and issues registering the baby for a passport in Ireland. Something that prospective parents may naturally worry about. This service is only available for married heterosexual couples with medical evidence that they cannot have children.
Same sex couples wishing to have children are going further afield to the US or Canada to find suitable surrogates as the Ukraine does not allow them to seek treatment there. A surrogate in the Ukraine can cost up to 60,000 euro and in the US anywhere from 70,000 - 120,000 dollars. Finding a suitable surrogate and finalising the details can take up to 18 months. Some surrogates are willing to be known to the child and want to be part of their lives and so this is something that should be discussed before agreeing on a surrogate. Maternity benefits are not provided for women having children through surrogacy as they did not deliver the child themselves.
What You Should Know
Different countries and different clinics offer surrogacy programs to Irish couples and so it is really important to research the requirements in each country as they may differ greatly. It is always advised to seek legal support from an Irish Solicitor that has experience assisting Irish couples with surrogacy before committing or agreeing to a surrogate.
Important things to know
The local legal requirements and legal procedures regarding the surrogacy in the country of birth
Ask the clinic to email you the details regarding their experience of working with Irish couples and also their understanding of the requirements of the Irish authorities and the Irish court procedure. This will give you a good idea of their knowledge and the experience with the process of surrogacy.
Whether there is an Irish Consulate or Irish Embassy in the country of birth or where the nearest Irish Consulate or Irish Embassy is
Whether your child is entitled to a passport from the country of birth which allows him/her travel home with you to Ireland or whether you need to apply to the Irish authorities for an emergency travel certificate
If you need to apply for an emergency travel certificate you will need written confirmation of the requirements and procedures that need to be followed from the Irish consulate/Irish embassy in the country that will be issuing the emergency travel certificate
Written confirmation from the clinic and the surrogate mother’s legal advisor that any affidavits and documentation that are required by the Irish Court as part of your court application will be provided.
Another tip is that you should ask the clinic to email you the details regarding their experience of working with Irish couples and also their understanding of the requirements of the Irish authorities and the Irish court procedure.
New provisions have been drafted under The General Scheme of Assisted Human Reproduction Bill 2017. The take home on these new provisions:
Altruistic surrogacy in Ireland will be legal
Commercial surrogacy will be prohibited
Rules and regulations for intended parents in order for a surrogacy agreement to be formally accepted
Guidelines for intended parents in terms of the surrogate they choose, the reasonable expenses they should provide to the surrogate, legal advice they must seek and the requirements for a Parental Order.
Useful Resources
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