Tracy Horan: People embarking on surrogacy here are faced with a legal grey area

Tracy Horan: People embarking on surrogacy here are faced with a legal grey area
Your Irish solicitor will liaise with the clinic ahead of the due date. Picture: PA

Lawyer Tracy Horan details the stages involved for intending parents about to embark on their surrogacy journey

ONE could be forgiven for thinking that, once technology has advanced to such a stage to allow couples who have hitherto only dreamed of having a child who is biologically their own to have such a child through surrogacy, a simple system would be in place to deal with the legalising of parenthood. However, in this country, that is unfortunately not the case.

We know that people who embark on surrogacy have most likely been through an incredibly difficult time trying to conceive, before deciding to have a baby through surrogacy. Often it is a last resort, and all other avenues have, in most cases, been explored. Your highest wish, after the baby has been born, is to bring it to Ireland and get on with your lives.

Unfortunately, things aren’t that simple where surrogacy is concerned in this country. There is no legislation here governing surrogacy specially — it is neither legal nor illegal, it is a grey area as the laws have not been legislated yet. There is currently a draft bill; however, it is my belief that it will have serious negative consequences. The draft bill is very limiting, and in my legal opinion, is a step backwards rather than forwards, from what I have seen of it so far.

The first step on your surrogacy journey should be to obtain legal advice. It is vital before commencing the journey to ensure that you have the correct advice regarding the legalities of surrogacy in Ireland, the requirements for getting your baby back to your home country, and obtaining legal parenthood.

The second step is to decide what country and clinic you will engage with. This decision is very personal for intended parents. The clinic will be your point of contact for the gestation period. Many of my heterosexual clients have chosen the Ukraine for surrogacy clinic options, but Canada and the US are both open to gay and heterosexual couples and there is no necessity to be married prior to embarking on your surrogacy journey in either country.

Once you have chosen your clinic and destination, it is vital that you sign a surrogacy agreement. This is the third step in the process. This is an agreement between you (the intended parents), the surrogate, and the clinic. This must be done before embryo transfer. This agreement sets out the parameters for the gestation period and what is expected of the surrogate and intended parents.

In advance of the arrival of the baby (or babies as often is the case), all legal paperwork will be prepared at least four weeks in advance of your due date. Your Irish solicitor will be liaising with the clinic and your foreign lawyer.

In order to finalise all documents that will be required immediately following the birth for your return to Ireland, it is now necessary to have DNA taken from your baby, the surrogate, and the baby’s father after birth. It is an Irish legal requirement.

Step five is preparing for birth and exit from your chosen destination. This is perhaps the most exciting step on your surrogacy journey. As we are all aware, babies are unpredictable and may arrive early, late, or just on time. We generally advise clients to be prepared to leave at the drop of a hat the nearer it gets to the due date. 

Legally, when you arrive back in Ireland with your new baby you are required to notify the HSE of your arrival within 48 hours and issue proceedings within 10 days for your Declaration of Parentage.

This is the legal process here which gives the biological father his rights to parentage and in turn to his son or daughter. This process can take between 12 and 18 months depending on where you reside (the amount of court sittings in your area and how busy the family court is). The aim is to finalise all legal matters including parentage, guardianship, and custody as quickly as possible with minimum interruption and disruption to your new family member.

Following a recent change to Irish guardianship laws, the mother can, after two years residing with the child, and if married to the father, apply for an order appointing her joint guardian of the child or children, otherwise she will have had to be cohabiting with the father for at least three years before the application. This is a straightforward application and firmly cements the family unit safely in Irish law.

Tracy Horan, managing partner in Tracy Horan Solicitors, specialises in family law and surrogacy in her Dublin-based office.

[h2]The law in Ireland: What's new/what has changed?[h2]

Currently the law relied upon in Irish courts in relation to recognition of rights and entitlements of parents of children born by surrogacy agreement stems from an number of key pieces of legislation that have subsequently been amended to reflect developments in this area and the societal recognition of different types of family situations. These include the Status of Children Act, Guardianship of Infants Act which was amended by the Children & Family Relationships Act 2015, the Irish Nationality and Citizenship Act 1956 in addition to the Passports Act 2008.

While Irish law currently does not provide specifically for a domestic surrogacy system, the aforementioned Acts provide for specific orders that allow for key legal recognitions for the parents of children born by way of foreign surrogacies, such as declarations of parentage, appointment as a guardian, granting of custody, Citizenship and Issuance of travel documentation & Passports.

Recently changes under Irish law now provide for an expedited process for the Appointment of a commissioning mother as the child/children’s guardian where she has resided with the child/children for in excess of teo years and is married to the child/children’s biological father. Where the commissioning mother is not married to the biological father, she must be cohabiting with him for in excess of three years and living with the child/children for in excess of 2 years.

Is there a difference between heterosexual and homosexual couples regarding surrogacy?

Homosexual couples face the same issues in recognition of parental rights in relation to the non-biological spouses and partners of the children through surrogacy that they face in natural parentage and adoption situations.

How long does the legal process take?

Formal recognition by the Irish courts currently can vary depending on what part of Ireland the commissioning parents live in, principally due to administrative issues.These applications require thecircuit court to make various orders under the Acts set out above and the preparing and filing of the necessary legal documents can take a considerable period of time. In the first instance the circuit court must make directions for the service of allcourt documents on the surrogate mother as she is outside of the Irish courts jurisdiction, who in turn must also swear additional legal documents to facilitate the court applications after she has received independent legal advice.

These applications require the Attorney General to be made a notice party, who in turn must be satisfied that the application is in compliance with Irish law and that all the necessary documents are correctly filed and comply with the requirements of Irish law.

Finally parents in counties where the circuit court sit less frequently additionally will have to wait for a date when the Court’s family division can hear such applications and in such circumstances the court may adopt a more cautious approach to the granting of surrogacy orders where such applications are not frequently brought before it.

What documents are required before bringing a surrogate child back to Ireland?

The biological father will be required to file a number of documents with the Irish embassy/consulate in the country of the child children’s birth. These include a DNA test and results of the father and child/children to establish their genetic connection, along with the necessary affidavits swearing to the authenticity of these results, a sampler statement, the necessary declarations and consents to the Department of Justice in addition to providing undertakings to the Irish authorities to notify the appropriate local health authorities in the location where the parents reside of the child/children’s arrival in Ireland and to apply for the requisite court orders within the stipulated time periods. Once all the necessary documents are furnished to the Irish embassy or consulate and they are satisfied with same they will then furnish the requisite emergency travel documentation for the child or children to allow the child or children travel to Ireland with their Irish parents.

Is there a legal difference between a donor egg and a personal egg?

Under Irish law the woman that gives birth to a child is the legal mother, regardless of whether the egg used to conceive the child was a donor egg or a personal egg.

Do you foresee any future changes in surrogacy law in Ireland soon?

I see the laws regarding surrogacy in Ireland being amended to recognise the rights and entitlements of all families in the not too distant future.

In particular I see that the maternal and parental benefits and leaves afforded to other categories of parents including adoptive leave and benefits in the not too distant future being granted to parents to children born through surrogacy.

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