Surrogacy is unregulated in Irish law and there is no legislation to cover the legal issues arising from surrogacy.

Many women in the public eye, from Rosanna Davison to Kim Kardashian, have opted for surrogacy as a way to bring their children into the world.

But surrogacy is a complicated issue in Ireland, and there is a lot of confusion and uncertainty around it.

Here, solicitor Sharon McElligott answers all of our questions.

What is the law on surrogacy in Ireland?

Surrogacy is unregulated in Irish law and there is no legislation to cover the legal issues arising from surrogacy. Due to this current legal vacuum, the legal status and rights of all involved are governed by the Guardianship of Infants Act 1964 and the Status of Children Act 1987.

Who is the legal mother?

The woman who gives birth to a child, in this case the surrogate mother, is recognised as the legal mother in Irish law.

The ‘intended’ or ‘commissioning’ mother, even if the genetic mother, has no legal status or immediate rights under Irish law.

Who is the legal father?

To identify the legal father of the child, the surrogate mother's marital status must first be determined. Under the GOI Act, the mother of a child born outside of marriage is the sole legal guardian. 

If the surrogate mother is married, then under section 46 of the Status of Children Act 1987, her husband is presumed to be the father.

This presumption can be rebutted by DNA evidence which proves that the male genetic material used in the surrogacy arrangement was provided by the intended father. This will enable the genetic father to be recognised as the legal parent of the child and this requires an application for a declaration of parentage. An application for guardianship will also be necessary.

How long does it take for the intending mother to gain legal status?

An application to Court by the intended mother (if married, a civil partner, or cohabiting for a period of over three years with the father) for the appointment of guardianship rights can be made once the intended mother can establish that she has shared day-to-day care and responsibility of the child for a period of at least two years.

What is "traditional surrogacy"?

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.

What is "gestational surrogacy"?

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.

Will the intended mother be entitled to maternity leave?

As the intended mother does not experience pregnancy and does not give birth to the child she is not entitled to maternity leave or maternity benefit.

What about parental leave?

Either or both intended parents can avail of parental leave. Currently, parental leave entitles the intended parent to 22 weeks unpaid leave. This will be increased to 26 weeks in September 2020. Parental leave can be applied for where the intended parent acts in loco parentis (that means they take the role that would usually be fulfilled by a parent and be actively parenting the child on an ongoing basis).

Domestic surrogacy

Both intended parents and surrogate mother are resident in Ireland. The embryo transfer takes place outside of Ireland. Surrogacy Agreements are unenforceable.

What about going abroad?

The law on surrogacy differs significantly from country to country, and thorough research is crucial.

Ukraine is a very popular destination for surrogacy arrangements, together with the USA and Canada.

In Ukraine, surrogacy is legal to married heterosexual couples with medical evidence to show that surrogacy is advisable/required. Intended parents are considered the legal parents of the child from the time of embryo transfer.

The Assisted Reproduction Bill 2017

The Assisted Reproduction Bill 2017 (which is not yet commenced) provides for the legalisation of altruistic domestic surrogacy. Commercial surrogacy is prohibited save for strict reasonable expenses incurred.

The intended parents must have a genetic link to the child, and the surrogate mother must have previously had a child. 

It provides for gestational surrogacy only (when child is unrelated to the surrogate mother).

There are some problems attached to this - there's no provision for surrogacy arrangements carried out abroad, no provision for the regularisation of status of arrangements falling outside the general scheme and no provision for retrospective recognition of status.

Surrogacy and Covid-19

Recent reports highlighted the many number of children born to surrogate mothers in the Ukraine who were left being cared for by nursing staff as lockdown and border restrictions prevented commissioning parents from entering the country to collect their child. The Department of Foreign Affairs have been providing significant support to intended parents to enable travel.

RSVP Live
June 2020
https://www.rsvplive.ie/life/family/everything-you-need-know-surrogacy-22145789