The issue of surrogacy and its legal status is a complicated one in Ireland, and remains a legal grey area in the Republic for those hoping to start a family.
Despite having the second-highest rate of surrogacy in the world, the vast majority of Irish parents seeking surrogacy to conceive travel abroad to places like Canada, the USA, and Ukraine where the intended parents are recognised as the child’s legal parents.
Unfortunately, this is not the case upon their return to Ireland where surrogacy remains unregulated and the law outdated.
Intended vs. Birth Mother
Under 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 legal mother and guardian of this child is the one who has given birth. If the surrogate mother is married, then her husband will be considered the joint guardian and legal father of the child. If she is not married, then the genetic father is the legal father.
The commissioning mother can then not legally be recognised as the child’s parent/guardian for a period of two years, provided that certain provisions are satisfied.
Assisted Human Reproduction Bill
Despite the introduction of the General Scheme of the Assisted Human Reproduction Bill in 2017, which is currently still working its way through the Oireachtas, concerns have been expressed that the bill falls short of the modern legislative standards required, as it will only regulate surrogacies that take place domestically in Ireland and not those that happen abroad.
International surrogacy will not be accommodated for, which can present another host of problems depending on where the child will live and its citizenship.
Promises of revised, comprehensive, and appropriate legislation on surrogacy has been promised for a number of years by government, and was left out of the Family and Relationships Act 2015, much to the chagrin of those who felt it was an opportune time for a standardisation of surrogacy law.
It is clear that urgent reform is needed in this area of family law if the continued stress, anxiety, and confusion is to be successfully managed for couples who feel that surrogacy may be their last hope of raising a family together.