Guidance for Irish couples going abroad for surrogacy services published in Ireland on 21st February 2012
There is no law in Ireland governing surrogacy. In 2005 a Government appointed Commission published a very comprehensive report on Assisted Human Reproduction, which made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would under Irish law be regarded as the parents of the child. Despite the publication there has been no legislation has been published and the area essentially remains unregulated.
Due to mounting pressure from Irish citizens going abroad to have children through surrogacy the Minister for Justice, Equality and Defence published guidelines for them on the 21st February 2012.
They are “intended to provide guidance as to the principles that will be applied by the Irish Authorities when considering” such issues as citizenship, parentage and guardianship in circumstances where a child is born abroad through surrogacy to an Irish couple and it is intended that the child would live in Ireland.
Unfortunately the fundamental complex legal issues surrounding surrogacy generally have all but been avoided. Notwithstanding the Minister in his press release does promise legislative proposals at some future date to deal with the complex issue of surrogacy.
In addition to dealing with how a child, in the first instance, can get into this country with his or her genetic parents/parent, the guidelines also outline how an application can be made to the Circuit Court on behalf of the child to have his genetic father declared to be his parent and thereafter how that parent can regularise his position by applying for guardianship once the child is in this jurisdiction.
The guidelines do not deal with how the child born through a surrogacy arrangement can regularise his/her position with the commissioning mother and as such the child is still left in a legal limbo.
The procedures for getting a child born through surrogacy into this jurisdiction are set out in the guidelines.
The child must firstly establish the he has an Irish parent. Under Irish law the birth mother is deemed to be the mother of the child and if she is
married her husband is presumed to be the father. This presumption can be overturned. It is only possible for such a child to establish his Irish parentage through the commissioning father. If the sperm of the commissioning father was not used then such a child may be unable to establish an entitlement to Irish citizenship even if he was conceived using the commissioning mother’s eggs.
The absolute pre-requisite to the establishment of paternity is DNA testing. A DNA report will have to be obtained from an independent laboratory approved by the Irish passport services (one laboratory has been named) and the tests must be carried out in accordance with the guidelines. In addition to the report an Affidavit must also be provided by the person taking the samples.
The guidelines set out details of the other documentation, which will be required to ground an application for an Emergency Travel Certificate (ETC). They also set out details of certain undertakings which the commissioning father will be required to give before such an ETC will issue. None of the documentation, affidavits or undertakings can be finalised, executed or sworn until after the child is born. An ECT will only issue when all the paperwork is in order.
The best position is that an emergency travel certificate would issue. This is a discretionary relief and is not guaranteed.
On the positive side, the guidelines are, if nothing else, an acknowledgment by the state that the issue of surrogacy needs to be addressed. Surrogacy, however, is only one of the many delicate aspects of fertility, assisted human reproduction, families and the rights of individuals that urgently need to be given statutory protection and regulated in Ireland.
By Fiona Duffy who is a partner in Patrick F O’Reilly & Co Solicitors, in Dublin firstname.lastname@example.org 25-07-2013.