Sunday 28 December 2014

Exploring surrogacy: The legal situation in Ireland

Published 05/04/2012 | 10:07

SURROGACY in Ireland is an area that is still somewhat under the radar, receiving less attention than the likes of IVF and adoption. Many people, therefore, don't have a huge understanding of what exactly is involved, particularly on the legal side, both for the child and parents.

With IVF the embryo, fertilised externally, is transferred back into its natural mother's womb for gestation and delivery. However, in the case of surrogacy, it is transferred into the womb of another woman.

The surrogate mother will not usually be genetically related to the child she is carrying, although in traditional surrogacy (still practised in some countries), the surrogate mother is also the biological mother. Surrogacy can also involve anonymous sperm and egg donors, making it even more complicated. In surrogacy, a legal contract is entered into between the biological parents and the surrogate mother, and a fee is agreed.

But while surrogacy here doesn't garner major headlines, it has been in the news lately, not least because Minister for Justice Alan Shatter recently published new guidelines giving information to so-called ' commissioning parents' on practical and legal considerations.

This was done because currently there is no specific law for surrogacy in Ireland, which means people are going overseas to go down this route and therefore surrogate children – and indeed their parents – can be left in a legal limbo, often without a passport or citizenship of any kind.

Launching the guidelines earlier this year, Minister Shatter said their purpose was to provide information to prospective commissioning parents on the steps necessary to ensure that a child born abroad through a surrogacy arrangement may enter and reside in the State and to secure the best interests of the child.

"The law relating to parenthood and guardianship rights in the context of surrogacy is complex. I intend to develop legislative proposals in this area in collaboration with the Department of Health, taking into account developments in the law of other jurisdictions, and practical experience in dealing with surrogacy cases," he added.

Legislation, however, was recommended in a report from the Commission on Assisted Human Reproduction, published seven years ago, but it has never been produced.

LEGAL ADVICE

The guidelines do give some direction to people thinking about surrogacy. They stress that those intending to make surrogacy arrangements for the birth of a child should obtain expert legal advice in Ireland first. They also note that establishing whether an intended parent is a legal parent of a child, whether the child is an Irish citizen and whether the consent of the child's guardians has been obtained will all take time and may involve more than one application to an Irish court.

Marion Campbell is a solicitor in Dublin who specialises in the area of surrogacy. She believes that legislation should be brought in to deal with the whole issue of surrogacy/assisted human reproduction as soon as possible.

"Because of the lack of legislation, both parents and children born by way of surrogacy are in a legal minefield and serious issues arise regarding custody, maintenance, Succession Act rights and entitlements. I am aware that there are talks taking place within various government departments regarding this legislation but am not at all certain as to when legislation will be brought in.

"The guidelines published were extremely helpful insofar as they clarified issues for people who travel abroad to have children born by way of surrogacy. They set out clearly both the procedures and documentation required by the courts in terms of applications for guardianship and travel documents."

Campbell believes there is an increasing number of couples here looking at surrogacy as an option.

"I see an average of four couples a month in relation to surrogacy queries. They are from all parts of the country. With the majority of them, the woman is not in a position to have children. Adoption is extremely long drawn out and even at the end of that process, there is no guarantee that there will be a child available to be adopted.

"The other very strong decision-making factor for couples who decide to go the surrogacy route is that there is a biological connection with the child, generally through the father."

Irish people seeking a surrogate have been going to countries such as India and Ukraine; however, Campbell says Ukraine is more popular.

"Most clients view India with some doubt because of concerns for ethical issues arising. If people can afford it, then they are going to the US as a child born by way of surrogacy there is a US citizen and acquires a US passport. Difficulties then in relation to travel do not arise.

"A child born in Ukraine has to establish a connection

with Ireland – an application has to be made for an Irish passport to allow the child be removed from Ukraine back to this jurisdiction."

Until the Government decides to introduce legislation on surrogacy in Ireland it remains a problematic area that is best pursued abroad.

"Surrogacy is not illegal in Ireland," explains Campbell. "However if a child is born by way of surrogacy the birth mother is the mother in Irish law and has all the rights in respect of that child. Her name is on the birth certificate.

"If the birth mother is married, then her husband is presumed to be the birth father of that child. If the birth mother is unmarried, then she has sole rights of guardianship and custody over that child. I would advise against any couple in this country having a baby by way of surrogacy. Surrogacy contracts are unenforceable."

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