Government approves policy to recognise families created through surrogacy

Senator Mary Seery Kearney said: "Second parents in situations where their relationship has broken down will now be able to go into court to secure access and custody orders in respect of their children.”

The Government has approved a policy which will seek to recognise families which are created through international surrogacy.

Health Minister Stephen Donnelly, together with the Minister for Justice Heather Humphreys and the Minister for Children Roderic O’Gorman, on Tuesday received Government approval for policy and legislative proposals on international surrogacy and the recognition of past surrogacy arrangements.

Currently, there are no laws in Ireland to govern either domestic or international surrogacy. Many surrogacies involving Irish people are commercial arrangements undertaken outside the State.

Campaign groups have consistently called for the Government to progress with legislation to provide for parental status in Ireland in international surrogacy arrangements. Once drafted, the finalised new legislative provisions will be inserted into the Health (Assisted Human Reproduction) Bill 2022 Bill at Committee Stage.

The policy approach approved by Government proposes that a two-step process will be introduced to allow for the recognition of parentage in future international surrogacy arrangements, encompassing pre-conception approval by the Assisted Human Reproduction Authority (AHRRA) and a post-birth court process for the granting of a Parental Order for Surrogacy.

Persons seeking to undertake international surrogacy arrangements will be required to meet the legal criteria both in the jurisdiction in which the surrogacy is intended to take place and also the criteria to be specified in the Irish legislation, which will correspond largely with the conditions to be met for a permitted domestic surrogacy agreement.

In line with the Oireachtas committee’s Final Report and the domestic surrogacy provisions of the AHR Bill, surrogate mothers cannot be paid more than the reasonable receiptable expenses which are incurred.

A process will also be introduced to allow the possibility for the recognition of parentage in respect of surrogacy arrangements – both domestic and international – undertaken prior to the commencement of the AHR Bill, as long as some key criteria are met.

At present under Irish law, the biological or genetic father of a child born through surrogacy may apply for a declaration of parentage in respect of the child, but the “intending mother” – because she is not the birth mother of the child – is not entitled to apply for the same declaration of parentage.

The Joint Oireachtas Committee on International Surrogacy was set up in January of this year and made a total of 32 recommendations.

These included establishing a new legal framework to support families who have children born through international surrogacy, and would see parental orders used to transfer parentage from the surrogate mother to the intended parents.

Following the committee’s report, an interdepartmental group was established by Health Minister Stephen Donnelly, Minister for Children Roderic O’Gorman and Justice Minister Helen McEntee.

Mr Donnelly said the policy and draft outline legislative proposals approved by Government today have the potential to provide hundreds of Irish families with a route to formal recognition by the State of the surrogacy arrangements they have undertaken, or will undertake, in other jurisdictions.

Minister for Health Stephen Donnelly said the policy and draft outline legislative proposals approved by Government today have the potential to provide hundreds of Irish families with a route to formal recognition by the State of the surrogacy arrangements they have undertaken, or will undertake, in other jurisdictions. File picture: Leah Farrell / RollingNews.ie

“We have endeavoured to implement, in so far as possible and appropriate, the proposals of the Special Joint Oireachtas Committee on International Surrogacy and have accepted the majority of the Committee’s recommendations,” he said.

Ms Humphreys said the Government’s proposals on international surrogacy and past surrogacy arrangements will meet the objectives and recommendations of the Oireachtas Joint Committee's report and will protect the rights and welfare of children and surrogate mothers.

Parents of babies born through surrogacy will now have their right to parentage enshrined in Irish law with a protective and ethical framework in place which also safeguards the rights of children, Fine Gael Senator Mary Seery Kearney, who has championed this cause, has said.

She said: 

These amendments will ensure that parents across Ireland who are not currently legally recognised by the State will be able to apply for parental orders so that they can make decisions for their children.

“The decisions they currently can’t make are simple ones parents usually take for granted, like consent for medical care, taking medication, school trips, having their photos taken. Second parents in situations where their relationship has broken down will now be able to go into court to secure access and custody orders in respect of their children,” she added.

She said that up until now, they have been at the mercy of the biological father of their children when it came to whether or not they would have access or custody of their children. 

“I know of a number of situations where mothers have been coerced into waiving interests in family homes just so that they can get to care for their own children. This discrimination will end today for the second parents of children born via surrogacy,” she added.