One could be forgiven for thinking that once technology has advanced to such a stage to allow couples that have hitherto only dreamed of having a child that is biologically their own, to have such a child through surrogacy, that a simple system would be in place to deal with the legalising of parenthood. However, in Ireland, that is unfortunately not the case.
Surrogacy involves complicated legal issues and David Henry and Company Solicitors highly recommends that you seek legal advice before making any such decisions.
It is also advisable to receive Counselling before starting the Surrogacy process to help you consider the questions involved. There are no Surrogacy Laws on the Statute Books at present in Ireland.
Why choose David Henry and Company?
We know that people who embark on surrogacy have been through an incredible difficult time trying to conceive, before deciding to have a baby through surrogacy. Often it is a last resort, and all other avenues have been spent. Your highest wish, after the baby has been born, is to bring it to Ireland and get on with your lives. Unfortunately, we are aware that things aren’t that simple where surrogacy is concerned.
There is no legislation in Ireland that legislates for surrogacy and the quest for legal parenthood can seem very daunting. We have a team of people that will try to ensure that you are guided through the legal labyrinth, to reach the end goal.
Here is a number of answers to questions that we are frequently asked:
1. We are thinking of trying to have a baby through surrogacy. Can you help us find a surrogate mother?
No, we cannot help you find a surrogate mother. Neither will we advise on the contract (if any) you draw up between you and the surrogate mother. However, once you have found one and she has been inseminated, we will be happy to help you sort out the legalities of getting the baby to Ireland and getting the legal relationships between you and the child sorted out. However, it should be noted that we will only advise on Irish law, and not the law of the country of birth.
2. Is there any point meeting one of your solicitors before starting the process of surrogacy?
Yes. There are a number of important factors you will have to consider before you embark on the journey of surrogacy. As it involves complex legal issues, these should be fully understood before the process is embarked on. An important factor is that the woman of the couple considering surrogacy will not be recognised as the child’s mother under Irish law, regardless of whether she provided the egg to the surrogate. The only way to rectify this is by applying to adopt the child.
3. Is there any point meeting one of your solicitors before the baby is born?
Yes. There are a number of procedures that need to be set in motion before the child is born. For example, if the child has been born abroad, and the commissioning couple want to bring the baby back to Ireland, certain formalities will have to be complied with, before the baby will be given a passport or an emergency travel certificate. As a baby born to a surrogate is not automatically recognised as the child of the couple who have commissioned it, certain paperwork and court documents will have to be prepared before the baby is born, to ensure that the necessary applications to court can be made as soon as the baby is born.
4. I am the biological father of the child and appear on the birth certificate as such. Can I get a passport for the child?
Yes is the short answer. You will have to prove that you are the child’s biological father (that you donated the sperm) by getting DNA evidence from a “reliable source”. Your solicitor can liaise with the Department of Foreign Affairs, who will provide a list of recognised DNA laboratories in the country of birth. The surrogate mother will have to consent to the application for a passport. There is a difference between an Emergency Travel Certificate and a Passport. The former only allows you to get the child back to Ireland, and once you are back in Ireland, you will still have to prove that you are the father and get the necessary consents. The latter you cannot get until you have a Declaration of Parentage and an order of Guardianship from the Irish Courts, as only guardians and parents can apply for a passport.
5. The surrogate mother is married. Does that change anything?
Yes. If the surrogate mother is married, her husband is presumed to be the child’s father under Irish law, unless the contrary is proved. The surrogate’s husband is also a joint guardian of the child. This means that when applying for an Emergency Travel Document, he will also have to consent. You will have to go to court for a Declaration of Parentage to prove paternity and then you can apply for Guardianship.
6. I have provided my eggs that were inseminated into the surrogate and appear on the birth certificate as the mother. Am I the mother in Irish law?
No. The person who gives birth to the child is considered to be the child’s mother under Irish law, even if you have provided the eggs. This might differ from the law in the country where the child was born.
7. Who can get a passport for the child?
Only the parent and/or guardian can apply for a passport. Therefore the only person who can get a passport for the child is the biological father (see answer to question 4). The commissioning mother cannot get a passport for the child.
8. We have a surrogacy agreement that states that I am the child’s mother.
Under Irish law family relationships, and the rights and duties that flow therefrom, cannot be subjected to the ordinary law of contract and cannot, in particular, be transferred to another person, bought, or sold. Until there is a change in the law in Ireland, you will not be recognised as the mother.
9. Will the surrogate mother always be the child’s mother?
Under Irish law, an unmarried mother is the sole guardian of the child. In this case the surrogate is the child’s sole guardian until the commissioning father applies for guardianship. The surrogate will always be the child’s mother, unless the child is adopted by the commissioning parents.
10. How do I get the child back to Ireland?
You will have to make sure that all the necessary paperwork is in order before you go to the country of birth. As soon as the child is born, you will have to have your solicitor on standby to make sure that all of the relevant papers are ready to be signed, which includes interpreters to translate for the surrogate mother and foreign legal advisors to make sure she understands what she is signing. To get an Emergency Travel Certificate for the child, the commissioning father will have to prove by DNA evidence that he is the child’s father, and get the surrogate mother’s consent (and if she is married, her husband’s). The commissioning father will have to provide undertakings to the Irish authorities that he will inform the HSE 2 days after he gets back to Ireland that he has brought the child into the State, and make applications for a Declaration of Parentage and Guardianship within 10 days.
11. I am the child’s biological father, and the child is now back in Ireland, what do I need to do?
You will need to get a declaration of parentage from the Irish Courts. You will need that in order to apply for Guardianship. However, it should be able to be done at the same time.
12. We have got the child back to Ireland. Why do we need to do anything else?
It is an offence under Irish law for someone who is not a parent, guardian or co-habitee of the parent or guardian or a relative of the child to look after a child full time for more than 14 days (there are certain exceptions). If you do not regularise your affairs within a specified timeline, you will be guilty of an offence and the HSE can remove the child from you. Furthermore, only a Guardian can make the important decisions about the child, i.e. with regards to schooling, or medical decisions.
13. Can I look after the child in Ireland without being a Guardian?
It is an offence under Irish law for someone who is not a parent, guardian or co-habitee of the parent or guardian or a relative of the child to look after a child full time for more than 14 days (there are certain exceptions).
14. The child’s passport states that I am the child’s father, am I automatically entitled to Guardianship?
No. Because you are not married to the surrogate mother, you are not automatically a guardian of the child under Irish law, even if you have been granted a Declaration of Parentage. Under Irish law you have the right to apply for Guardianship if you are the genetic father of the child.
15. I have provided my eggs for the surrogacy. Can I be a joint Guardian?
No. Unfortunately under Irish law, the unmarried mother of the child is the sole guardian (which is the surrogate mother), until the biological father applies for joint guardianship. The surrogate can never be removed as the child’s guardian, unless by adoption.
16. How do I become the child’s legal mother?
The only way you can become the child’s mother is by trying to adopt the child. If your husband is the child’s guardian and you want to adopt the child, you will both have to adopt the child. This is because adoption severs all links to all others in favour of the adoptive parents. All commissioning mothers should take note that unless they adopt, they have no legal relationship with the child. This can have a significant consequence if the commissioning couple were ever to separate, or the commissioning father were to pass away.
17. What if the commissioning father is not biologically related to the child, but I (the commissioning mother) am?
The only way to legalise relationships with the child is by adopting it. You should be aware that this could take time and be a complicated process.
18. Can I get maternity leave after the child is born?
No, as the law stands, only the child’s mother is entitled to maternity leave. Unfortunately, the commissioning mother is not legally recognised as the child’s mother, and is therefore not entitled to maternity leave.