'I'm still waiting': Uncertainty around parental rights remains two years after assisted reproduction legislation was passed

Under Part 12, intended parents would be able to secure a parental order with the consent of the surrogate and the biological father, subject to strict criteria around residency and the legality of the arrangement.

Nearly two years after the Health Assisted Human Reproduction Act 2024 was passed, key sections of the legislation are still not implemented, leaving many families in legal limbo.

The act was widely described as landmark legislation which was designed to regulate assisted reproduction and provide long-awaited clarity on issues such as surrogacy and legal parentage in Ireland.

However, much of its main legal framework has yet to be commenced. This leaves families yet again feeling uncertain about their rights.

Part 12 of the legislation, which provides for the retrospective declaration of parentage for children born through surrogacy, “remains uncommenced”, said campaigner Lauragh Goggin, whose two children were born via surrogacy.

“This section is critical for families who had children prior to the legislation, as it would allow them to apply to the High Court for formal parental orders,” she said.

“There is nothing, no movement at all on Part 12,” she said. 

“No sign of the amending legislation that was promised for September 2024. It’s nowhere to be seen. Nobody has seen it, nobody knows what’s in it.” 

The delay means that parents of children already born through surrogacy and are living here, still cannot access the legal recognition envisaged under the act.

Under Part 12, intended parents would be able to secure a parental order with the consent of the surrogate and the biological father, subject to strict criteria around residency and the legality of the arrangement.

Ms Goggin said families had expected swift progress following the passing of the act. 

“When it passed in July 2024, I thought I’d be applying for a parental order as soon as my child was born,” she said. 

“Instead, I’m still waiting.” 

'Piecemeal approach'

While the broader act remains stalled, there are indications of limited movement on more narrow provisions.

However, Section 232, which addresses a gap affecting some female same-sex couples who undertook home insemination prior to May 2020, is expected to commence.

That provision is seen as a corrective measure that was not fully covered under earlier legislation, including the Children and Family Relationships Act 2015.

However, campaigners say this “piecemeal approach falls far short of what was promised”.

The absence of a commencement timeline for Part 12, alongside the lack of clarity around the promised amending legislation, "continues to create uncertainty for families seeking legal recognition”.

Currently, because Part 12 of the act has not been commenced, the legal mother is the surrogate while the biological father is recognised under Irish law.

"In other words, for my family, the surrogate is still the legal mother of my children, and my husband is the legal biological parent," said Ms Goggin. 

"That's the same for a same-sex male couple. The biological father will be the biological father and the surrogate is the legal mother, and the second dad would be in the same position as I am.

"It is guardianship rights only for me and we don't have a judicial instrument to adopt our children, as surrogacy is not legislated for here, that is what the Adoption Authority of Ireland has said.

"The intending mother must apply for guardian rights, but has to wait two years before doing so."