Sunday 15 September 2019

Surrogacy in Ireland: 'There is no legislation, it's a grey area'

Surrogacy is becoming increasingly popular with Irish couples
Surrogacy is becoming increasingly popular with Irish couples

Surrogacy is a complicated issue in Ireland.

Last week, Rosanna Davison shared her fertility journey when she revealed that she was expecting a daughter through gestational surrogacy, after suffering multiple miscarriages.

It’s a story that resonated with many couples. Surrogacy remains a bit of a legal grey area in Ireland, says Annette Hickey of Poe Kiely Hogan Lanigan Solicitors - a legal firm specialising in surrogacy and fertility laws.

“There is no legislation. Surrogacy is neither legally prohibited nor permitted here,” Ms Hickey said. This can lead to legal complications down the line, she explained. 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.

According to Ms Hickey there are many issues couples need to explore before surrogacy:

Traditional vs gestational?

Wesley Quirke and Rosanna Davison have announced they're having a baby. Picture: Instagram
Wesley Quirke and Rosanna Davison have announced they're having a baby. Picture: Instagram

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.

Who are the child’s legal parents?

In Irish law, the mother is the individual who gives birth – even if the ‘intended’ or ‘commissioning’ mother supplied the egg used in the surrogacy. As a result, the surrogate is the child’s legal parent and the legal guardian in both traditional and gestational cases.

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. 

How long does it take the intended mother to gain legal status as parent?

The intended or ‘commissioning’ mother cannot establish a legal relationship with the child until she has shared the day-to-day care of the child with the father for a period of two years.

What is the cost?

It can vary considerably from €30,000 - €150,000 depending on the clinic, the country and the treatments. It is extremely costly and parents must factor in additional costs such as travel (if going international), insurance, legal bills, antenatal classes, counselling services, and accommodation.

Is domestic surrogacy an option?

Domestic surrogacy is available if the infertile couple can find a surrogate who wishes to carry their child.

Compensation for medical bills, accommodation, time away from work, can be arranged between the parties but surrogacy agreements are not enforceable in Ireland. 

To qualify, 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.

I am thinking of going abroad. What are the differences in law between different jurisdictions?

This laws differ drastically from jurisdiction to jurisdiction.

Commercial surrogacy has been legal in the Ukraine 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 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. "That's a big draw for many couples, as it means the surrogate cannot change her mind," Ms Hickey said.

However the service is only available for married heterosexual couples with medical evidence that they cannot have children.

In Canada there is no commercial surrogacy, under federal law surrogacy can only be altruistic. It is also available to same sex couples. The child is automatically a Canadian passport holder and this eliminates the need for emergency travel documentation. 

What should I look for when visiting a clinic?

According to Annette Hickey, it is essential to do your homework. "It's research, research, research," Ms Hickey said. "You must find out everything you can about the clinic, and make sure they are reputable."

Find out how long the clinic has been in operation, and what sort of background checks and psychological assessments they carry out on potential surrogates. Don’t forget to iron out the practicalities – is there an expenses payment system in structure via the clinic, and are payments staggered?  

Will I be entitled to maternity benefits if I use a surrogate?

No. As it currently stands only the individual who gives birth to a child can avail of maternity leave or maternity benefits.

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