Surrogacy

AThere is no legislation governing surrogacy in Ireland. Surrogacy agreements are unlikely to be valid in the Republic of Ireland. As a result, Irish couples desperately wanting to have children through surrogacy are driven overseas for fertility treatment. The Minster for Justice, on 21 February 2012, published a guidance document (see www.justice.ie) for Irish couples on surrogacy arrangements made abroad. The purpose of the guidance document is to provide information to prospective commissioning parents on the steps necessary to ensure that a child born abroad through a surrogacy arrangement may enter and reside in the state. It is intended to develop legislative proposals in the coming years for the purpose of comprehensively dealing with this complex area. In a recent case before the Supreme Court, the genetic parents on behalf of their two small children born to a surrogate mother sought to have their names listed as the children’s parents on their birth certificates.

Declarations were sought under the Status of Children Act, that their genetic mother is their legal mother and should be named as such on the birth certificate. The surrogate mother consented to the application. The Registrar General defended the action, stating that the policy in Ireland is that the name of the woman who gave birth to a child, and not the genetic mother, is the name placed on the child’s birth certificate. In a decision handed down by the Supreme Court in 2014, the genetic parents were unsuccessful in their application to have the biological (based on DNA testing) mother recognised as legal mother. It is submitted that the continued lack of a legislative framework for surrogacy arrangements creates unnecessary risk, uncertainty and costs for those involved.