24 May 2022 Why Irish Surrogacy Reform Must Address International Surrogacy

Irish lawmakers tasked with drafting reform legislation to legalize and regulate surrogacy and other types of assisted reproduction in Ireland are considering a draft that would completely ignore the rights of Irish intended parents and their infants born via surrogacy in other countries.

In my own upcoming testimony June 9 before the joint Oireachtas Committee on International Surrogacy, a committee created to advise the Irish legislature, I’ll be urging its members to consider the thousands of children and intended parents who will continue to be stuck in “legal limbo” under existing Irish laws governing citizenship and parentage, should they be left out of this new legislation.

 Long-standing campaign to legalize surrogacy in Ireland

Currently, there are no laws governing surrogacy in Ireland. A surrogate who gives birth, even though she is not genetically related to the child, is considered to be the child’s legal mother; if the surrogate is married, her husband is considered the child’s legal father. In order to establish parentage, the Irish intended father must prove via DNA testing that he is genetically related to the child and apply for a court order. The intended mother, even if her own genetics were used to conceive the child, does not have a legal path to establish her parentage, as The Irish Times reported.

Due to the lack of regulation and legal protections for surrogacy, most Irish citizens who choose to create families using surrogacy travel to countries with more favorable laws, such as the United States, to do so. For at least 1,000 such families now living in Ireland, their parental authority and, in some cases, children’s citizenship status, remain murky.

In a report last November, the Irish Examiner told the story of an Irish couple who traveled to India for surrogacy in 2015. Today, under existing Irish law regarding foreign surrogacy, the child’s legal parentage and Irish citizenship are based solely on the father’s genetics, and the proud mother of thriving 5-year-old twins has no legal parental rights. She cannot legally provide permission for a school field trip or make decisions for the twins in a life-threatening emergency. Should she and her husband divorce, he would have the right to sole custody.

New law to restrict intended parents’ eligibility for surrogacy in Ireland

Rather than prioritizing the rights of children to secure family relationships and citizenship, some Irish lawmakers want to deal with reforms governing international surrogacy separately, deferring the issue to a later time. Some believe the new law should disincentivize international surrogacy by making legal surrogacy in Ireland more accessible and attractive.

The problem is, even the proposed new legislation, while sorely needed, contains strict limitations on surrogacy arrangements, including banning compensated, or “commercial,” surrogacy. With its prohibition on payment to the surrogate for her time, inconvenience and physical discomfort, as well as strict screening criteria for surrogates, the new law would all but guarantee that the demand for Irish surrogates will exceed the supply. Those feeling an urgent desire to become parents, who have the means, are likely to continue pursuing surrogacy in other countries.

In addition to limiting surrogacy in Ireland to “altruistic,” or uncompensated, arrangements, the proposed new law requires that Irish surrogates must be at least 25, must have given birth at least once and may not serve as a surrogate more than twice.

In order to be eligible to participate in surrogacy legally, the new law would require that Irish intended parents be unable to conceive or be at medical risk from pregnancy and birth. At least one intended parent would have to be genetically related to the child. The surrogate would still be recognized as the child’s legal mother at birth, and the intended parents would be required to make a court application for parentage within a certain period after birth, as The Independent reported.

University College Cork law Professor Conor O’Mahony, appointed the Irish government’s Special Rapporteur on Child Protection in 2019, warns that leaving international surrogacy out of the reform legislation will infringe on the rights of children born abroad, the Examiner reports.

“At the moment [we] pretend surrogacy doesn’t exist, and have no legal regulation of it, leading to situations where children are born into families and cared for in a family where one or both parents have no legal connection to the child,” O'Mahony said. “In essence, we deny them the right to recognition of their family relationships…. We have a choice between continuing to do what we do now—which is leaving families in a legal twilight zone—or actually addressing it and putting in place safeguards that will protect children’s rights and safeguard the interests of all the other parties as well.”

Ireland’s current statutes on the parentage of children born via surrogacy abroad are contrary to a 2014 decision of the European Court of Human Rights: The court ruled that France must recognize the parentage of French intended parents who are genetically related to their babies born via surrogacy in other countries.

As we reported then, “The ECHR, which acts under authority of the European Convention on Human Rights enacted by the Council of Europe in 1950, ruled that while France has the right to ban surrogate parenthood within its boundaries, it does not have the right to deny legal status to the parent-child relationships of children and their parents just because a surrogate carried and delivered the children.”

Our colleagues who have campaigned so long for legalized surrogacy in Ireland are thrilled that intended parents may soon be able to create families via surrogacy without traveling to a foreign country to do so. But opening that door without offering a legal path for the parents of babies born abroad to establish parental authority would be a harmful omission and a gross miscarriage of justice for hundreds of families. That’s why I’ll be raising my voice to urge Irish lawmakers to affirm the rights of all Irish children to legal citizenship and secure family relationships, without the expense and lengthy delays of extensive legal proceedings.

For information about Irish surrogacy laws and the process for Irish intended parents who opt for surrogacy in the United States, please see the informative webinar produced in collaboration with Irish surrogacy attorney Annette Hickey of Poe Kiely Hogan Lanigan Solicitors LLP, or contact our experienced team of fertility lawyers and paralegals at International Fertility Law Group.