Same-sex couples and other surrogate families in Ireland need guardianship rights
The Oireachtas needs to go further and improve the law surrounding the acquisition of guardianship where a child is born through donor-assisted human reproduction (DAHR), or traditional surrogacy. File picture
Introduction of the Guardianship of Infants (Amendment) Bill 2026 ('Valerie’s Law') by the minister for justice, Jim O’Callaghan in the Dáil recently is a welcome update to guardianship law in Ireland, but it is missing crucial changes for families who've used surrogacy or assisted human reproduction.
Guardianship is the right and duty to decide how a child generally will be raised, and it is vested in married parents and same-sex civil partner parents upon the birth of their child, and ends when a child reaches age 18.
This bill’s existence is testament to the ongoing campaigning by the family of Valerie French, a woman whose husband was convicted of and sentenced for her murder, yet who retains guardianship rights in relation to their three children.
Once enacted, the law will address this type of situation by requiring the Child and Family Agency to make an application to the court for an order either restricting or removing the guardianship of a guardian convicted of the murder or manslaughter of their child’s other guardian.
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The law will also apply retrospectively, so that the Child and Family Agency will be able to apply for this type of order in respect of any guardian previously convicted of the above crimes against their child’s other guardian.
Valerie’s Law is welcome in that it will lead to the restriction or removal of guardianship in cases of domestic homicide and other serious crimes.
However, the Oireachtas needs to go further and improve the law surrounding the acquisition of guardianship where a child is born through donor-assisted human reproduction (DAHR), or traditional surrogacy.
Currently, where a child is born through DAHR, the question of who becomes a guardian at birth depends on a second legal parent being married to or in a civil partnership relationship, with the child’s mother.
For cohabiting couples, the law requires that, before a DAHR procedure takes place, the woman giving birth must consent in writing to her cohabiting partner being the child’s parent.
However, she cannot also consent to her cohabiting partner being the child’s guardian.
This is bizarre given that the couple has agreed to have a child together via DAHR, and both will automatically be recognised as parents upon the birth of the child.
Nonetheless, the birth mother’s cohabiting partner must take extra steps to acquire legal guardianship after the birth of the child.
This most commonly affects unmarried female couples as they can't have children without going through the DAHR process.
Further, although legislation has been enacted to regulate surrogacy arrangements, the legislation does not include traditional surrogacy. This is where the surrogate uses her own egg to help form the embryo and is thus genetically related to the child she gives birth to.
Couples who engaged in traditional surrogacy arrangements in Ireland or abroad will not be able to acquire a Parental Order under the legislation. This is a court order transferring all parental rights from the surrogate to them.
Instead, these couples will have to rely on pre-existing laws to establish legal ties with the child, meaning that the genetic father will be able to be recognised as a legal parent and guardian of the child following a court order, but the mother cannot be recognised as the child’s parent.
The same is also true for a non-genetic co-father who goes through a traditional surrogacy arrangement with his same-sex partner.
The unavailability of a Parental Order in respect of children who were born through traditional surrogacy will undoubtedly be disappointing for Irish couples who are raising such children.
Although the mother or non-genetic co-father of a child born through traditional surrogacy cannot be recognised as parents, they can acquire guardianship of the child, but only after they have shared day-to-day care with the child’s father for more than two years.
Consequently, they are legally disqualified from acquiring guardianship rights and duties for some of the most formative years of the child’s life. If the child’s father becomes incapacitated during this time, the child can be left without any adult who can legally make important decisions relating to their care and upbringing.
This lengthy two-year waiting period before the mother or co-father of a child born through traditional surrogacy can apply to the court seeking to acquire guardianship may even be contrary to the child’s right to respect for their private or family life, as guaranteed by Article 8 of the European Convention on Human Rights.
The law must ensure that children born via DAHR and surrogacy are not without a second legal guardian during crucial stages of infancy. Therefore, the need for further reform of the law relating to guardianship remains pressing.
Indeed, when Valerie’s Law was recently debated in the Dáil, the minister for justice, Jim O’Callaghan TD, was urged by the leader of the Green Party, Dr Roderic O’Gorman, to publish the research report on guardianship commissioned by his Department five years ago.
The Green Party leader stated that “it is my understanding that it is completed and it is on the minister’s desk. It was even on his predecessor’s desk as well”.
As lead author on that report, I can confirm that it was completed and submitted to the Department of Justice back in 2022.
The report makes balanced recommendations for law reform that would see unmarried fathers, unmarried second parents in families formed through DAHR, and mothers or co-fathers in families formed by traditional surrogacy, all acquire guardianship rights in a much more streamlined fashion.
The reasons for the department’s failure to publish the report in the interim remain unknown.
If the minister would rather not implement the report’s evidence-based recommendations on guardianship law reform, that is his prerogative, but he should at the very least place the report in the public domain so that its proposals can be considered, debated, and accepted or rejected by relevant stakeholders and members of the public.
Valerie’s Law is a crucial and commendable piece of legislation, but it should represent the beginning, not the conclusion, of the process of guardianship law reform in Ireland.
- Dr Brian Tobin, Associate Professor, School of Law, University of Galway
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