There is no official data on the number of children born as a result of surrogacy arrangements in Ireland. However, it has been widely recognised that there has been a significant increase in surrogacy in Ireland as a result of new technologies and availability of surrogates. In advance of new and long awaited legislation due to commence this autumn, there is much anticipation and excitement among Irish families.

Recent court cases and media reports have highlighted the gaps in Irish legislation for families of children born through surrogacy. There has been extensive criticism of the current situation, with particular reference to the lack of equality for children and parents and impact on their family life.

At the moment, where a couple have a child through surrogacy in Ireland, there are limitations for the intending parents, those being the couple who will be caring for the child after the surrogate gives birth. Irrespective of the gender of the couple, only the biological father of the child can apply for guardianship in Ireland immediately after the child is born. The biological mother or any other intended parent can only apply once they have been caring for a child for two years. However, even then, the guardianship is limited and subject to the views of the biological Father. This is set out in the Guardianship of Infants Act 1964 as amended by the Children and Family Relationships Act 2015.

The latest provisions are included in The Health (Assisted Human Reproduction) Bill 2022 (AHR Bill). The proposed legislation is now in progress through the various stages of government, with indications of finalisation in Summer 2023. The bill initially looked only at domestic surrogacy. However, following review by the committee on international surrogacy, it has been acknowledged that any new legislation should also address international surrogacy because Irish families and individuals are likely to continue to engage surrogates in other countries.

The key proposals of the new legislation are as follows;

• Allow for a parental order to be made in the Circuit Court to recognise the lawful parentage of a child through surrogacy, once criteria are met. This will not be restricted to biological parent only, as is the current position. All intending parents of children born through surrogacy can apply.
• Establish a regulatory authority to oversee the sector – the Assisted Human Reproduction Regulatory Authority (AHRRA).
• Establish a National Surrogacy register, which would be accessible to the child of surrogacy.

Provisions are expected to be retrospective and provide protection to existing as well as future surrogate families.

What will the new legislation mean for parents, children and surrogates?

Children

• International Social Services and United Nation Convention on Rights of the Child have developed the Verona principles (2021) to provide guidance to states on surrogacy from the child’s perspective, including a number of factors to determine what is in their best interests. It is expected that these factors will be utilised by judges in the determination of new parental orders.
• Children will be able to access information about the surrogate parent and their origins through the establishment of the National Surrogacy register.
• There will be less discrimination of children based on parentage by creating a framework to treat all children equally, irrespective of their origins from surrogacy or otherwise – ie children of surrogacy have the same rights as all other children, including certainty and legal status.

Parents

• Intending parents will be able to apply for a parentage order instead of having to use other legislation, not suited to surrogacy.
• A system of pre-birth authorisation will be available through the new regulatory authority, which would make the process more straight forward once the child is born.
• Parents will be required to obtain legal advice before a surrogacy agreement can be made or parental order granted.
• There will be increased protection for all non-biological parents and mothers.

Surrogate Mother

• Legislation will allow for reasonable costs only to be paid for the surrogate.
• Surrogate is required to obtain independent legal advice before signing the surrogacy agreement.

There are a number of other provisions to prevent the exploitation of women and trafficking.

Summary

In times when there is so much focus on equality and non-discrimination, it is very important that Irish legislation catches up to its society and the advances in reproductive medicine. Parents and children who become a family through surrogacy in Ireland require the same legal protection as all other families, irrespective of gender, biology and circumstance in the same way as we have legislation to protect adoptive families, foster families, step families and extended families.

For more information on the scope of the law on surrogacy, contact a member of our Health & Prosecutions team.

The content of this article is provided for information purposes only and does not constitute legal or other advice.