Update from Joint Committee on International Surrogacy

The Joint Committee on International Surrogacy was established on the 9th of February 2022. It was set up to make recommendations regarding measures to regulate and address concerns arising from international surrogacy. The Committee published its final report on the 6th of July this year.

In this article Karen Tobin, Family Law Partner, CKT and Megan Bourton, Intern, CKT give an overview of the report and its findings.

Current Framework in Ireland

Currently, there is no specific legislation for surrogacy in Ireland, it is not legal or illegal.

In Ireland, the person who physically gives birth to the child is the legal mother and the implications of this are that she is sole guardian and custodian regardless of her relinquishing those rights in the surrogacy contract.

The legal father of the child is the person who is married to the surrogate mother. If the surrogate mother is not married, then the commissioning father, provided he is genetically connected to the child, needs to make the following legal applications to establish parental rights through the Irish Courts:

1. An application for parentage, DNA confirmation will be required.
2. Application to be appointed joint guardian with the surrogate mother (the surrogate mother has automatic guardianship in Ireland)
3. Ask the court to dispense with the surrogate mother’s consent for any future applications for a passport application for the surrogate child.

The only way the commissioning mother can establish her parental rights is by adoption.  Intending parents who are not genetically connected to the child can apply for guardianship after a period of two years of caring for the child.

Report Findings:

The report recognised that a lack of regulation in this area can have detrimental effects on all parties involved, some highlighted points include:

• Intending Commissioning mothers are not entitled to maternity benefits which can create emotional and financial strain.
• Same sex couples are left with at least one intending parent unable to acquire legal parental recognition.
• Only one male parent in a male same sex couple can be recognised as the genetic parent. In female same sex couples, neither intending parents have a route to legal parenthood.
• A child born through surrogacy who receives a gift or inheritance from a father is treated as a parent/child relationship, however, if that same child receives a gift from the intending mother or maternal grandparents, the child is treated as a stranger in blood relationship.

The report acknowledged that a framework for international surrogacy must be established to address the concerns surrounding it. It focused on four key areas:

1. The rights and obligations of intending parents of existing children born through surrogacy.
2. The rights of children born into surrogacy.
3. The rights of surrogate mothers.

Recommendations:

The report made 32 recommendations in total following three months of examination. Among them some of the key recommendations are:

• A Parental Order System which transfers parentage from the surrogate to the intended parents.
• Intended parents to be in a position to apply for a parental order for both intending parents and the surrogate parents. Where this is granted, the intended parents shall have all of the legal rights to the child i.e., guardianship and custody, regardless of biological connections. A parental order shall name the surrogate and sever any parental relationship with them and removing all parental duties.
• The Irish Nationality and Citizenship Act 1956 to be amended to state that following the issuance of a parental order, the child born through surrogacy shall be an Irish citizen, where the intended parent is an Irish citizen.
• The current Health (Assisted Human Reproduction) Bill 2022 (AHR Bill) should be amended to allow, following the issuance of a parental order, the intended parents to have access to the information stored on the National Surrogacy Register, until the child reaches 12 years old. After the age of 12 the child it was recommended that the child should be able to access the information themselves through the Register.
• Recognition of international surrogacy agreement based on a two-step model for pre-birth and post-birth. The Assisted Human Reproduction Regulatory Authority (AHRRA) is a body recommended to be set up by the AHR Bill which would be responsible for regulating and licencing assisted human reproduction treatments.

Conclusion

This report has been welcomed in Ireland by surrogate parents and prospective parents. The recommendations, if implemented, will bring an end to the legal vacuum that currently surrounds international surrogacy in Ireland. Senator Lorraine Clifford-Lee stated that; “The recommendations in this report can become part of the Assisted Human Reproduction Bill and give parents the legal right to their children born through international surrogacy.”

Read full report here.

Karen Tobin is a Family Law Partner and Mediator at CKT. Her experience focuses on surrogacy, divorce, separation, civil partnership, nullity, custody and access disputes, maintenance and domestic violence disputes. If you have a query in relation to this article, you can contact Karen on 021 4626900.