Developments in medicine have meant that the options when it comes to conceiving a much longed for child have multiplied. Previously the possibilities were limited. Adoption was the only option and the law in relation to adoption has been developed and refined over a long period of time to deal with the sometimes complex issues this scenario can throw up. However the timeframe in which surrogacy has gone from an abstract concept to a viable option for hopeful couples has meant the law has not kept pace with changing developments. The agreement may be made in Ireland but there is an increasing number of people availing of surrogacy arrangements abroad, in countries such as India and the Ukraine. There is no Irish legislation regarding surrogacy and the many ancillary issues that arise in relation to parentage. Traditionally under Irish law, it is the birth mother who is recognised as the legal parent of a child. If she is married, her husband is presumed by law to be the father of the child and a joint guardian. If the birth mother is not married, she is the sole guardian. In order to create a legal relationship, a commissioning parent can apply to adopt the child.
For many in Ireland, meeting someone, falling in love and getting married is closely followed by thoughts of settling down and starting a family. With almost 65, births a year at first glance it would appear that the thought of having a family is alive and well in Ireland and without major complication. If a couple has really set their heart on starting a family, the desire will be strong and when complications arise it can leave them with a genuine sense of loss no matter the circumstances. At this point a lot of couples will look to other options such as IVF or Adoption as an alternative route towards parenthood. Adoption in Ireland is also not without its own challenges as waiting lists are long and the process complex leaving some couples too old to adopt by the time they get to the end of the process. In recent years, a growing number of Irish couples have started to consider Surrogacy as an option to start a family of their own. In Ireland, surrogacy is currently unregulated although the Assisted Human Reproduction Bill is currently being drafted and will, when enacted, deal with domestic surrogacy. Surrogacy is typically termed as either domestic surrogacy , i. Because of the current legal position in Ireland, couples considering domestic surrogacy will be stepping into an unofficial and unregulated surrogacy arrangement. This is something which if not properly managed can lead to major complications for the intended parents and the child as many question can arise not least who is the legal parent of the child in Ireland the parents of a child are legally defined as the women who physically gives birth to the child and by the DNA of the father?
Surrogacy is where a woman becomes pregnant with the intention of handing over the child to someone else after giving birth. Surrogacy is a way for a childless couple or individual to have a child, with a surrogate mother carrying the child. 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 countries including the UK, Ireland, Denmark and Belgium, surrogacy is allowed where the surrogate mother is not paid, or only paid for reasonable expenses. Paying the mother a fee known as commercial surrogacy is prohibited. If the surrogate mother is married, then her husband is presumed by law to be the father, and will be considered joint guardian. This can be disproved via DNA testing. There are no internationally recognised laws for surrogacy, so many parents and children can be left vulnerable — or even stateless.
Surrogacy is the process whereby a woman carries a child through pregnancy on the understanding that, at birth, the child and legal parental responsibility for that child will transfer to other individuals, who will then make the relevant applications to Court to become the legally recognised parents of the child.
It is increasingly common for couples who are perhaps experiencing fertility issues or for same sex couples who wish to have a genetic link to their child to enter into this type of arrangement. Partial or traditional surrogacy whereby the surrogate donates her eggs, as well as carries the child.
Total or gestational surrogacy whereby the surrogate is not related to the child. She is known as a gestational parent. When the child is born, the legal parent of the child is the surrogate mother. This is regardless of whether she is genetically related to the embryo or not. If the surrogate is married, her husband will be considered as the father of the child. This position will not change until altered by a Court.
For the intended parents to become the legal parents of the child and for the transfer of parental responsibility to them, an application for an adoption order or parental order must be made to the Court. When a parental order is made, it extinguishes the rights of the surrogate and transfers parental responsibility to the applicant parents.
This order does not expire and is life long. The birth of the child is re-registered in the names of the parents. A parental order can only be made if one or both parents are genetically related to the child. If neither of the intended parents are related to the child, then the intended parents must proceed by way of adoption.
When an application is brought to the Court for such an Order, the Court must be satisfied of the following;. When the application is made to the Court, the intended parents are the Applicants and the surrogate is named as the Respondent.
The Surrogate and their husband must give consent to the making of the Order. Send Email. Naomi Devlin Send Email. To speak to someone personally and in confidence. Call or Contact us.