05 March 2012

By Fiona Duffy

Partner in Patrick F O’Reilly & Co Solicitors, Dublin

The long-awaited guidelines for Irish couples who have children born abroad through surrogacy, issued on 21 February, have all but avoided some of the most fundamental legal issues surrounding surrogacy.

I say long-awaited because this is the first positive action taken by any minister in Ireland, in this case the Minister for Justice, Equality and Defence, since 2005. At that time, the Government-appointed Commission on Assisted Human Reproduction’s very comprehensive report made many recommendations on the broader area of assisted human reproduction. In relation to surrogacy it recommended that the commissioning couple would, under Irish law, be regarded as the parents of the child.

Explained in the guidelines are the principles the Irish authorities will use to consider issues such as citizenship, parentage and guardianship when a child is born abroad through surrogacy to an Irish couple and it is intended that the child will live in Ireland.

However, they go no way towards addressing the wider, and far more complex, issues surrounding surrogacy in general. In his press release, the Minister does promise legislative proposals to deal with the complex issue of surrogacy – but only at some future, as yet undefined, date.

It also seems the guidelines have been issued as a knee-jerk response to extensive media coverage of many Irish couples being left in legal limbo following the birth of their child via a surrogate abroad.

With regards to cross-border surrogacy, it appears the Department has decided to deal with probably the most pressing issue for them – the paperwork – before dealing with the fundamental issue of surrogacy and the implications of it on all the parties involved.

According to the guidelines, to get a child born through cross-border surrogacy into Irish jurisdiction they must fulfil certain criteria.

It must first be established that the child has an Irish parent. Under Irish law the birth (surrogate) mother is deemed to be the legal mother of the child, and if she is married her husband is presumed to be the father.

This presumption can be overturned, by making an application to the Circuit Court on the child’s behalf to declare the commissioning father a parent. However, this is only possible if his sperm was used. If it was not then the child may be unable to establish an entitlement to Irish citizenship, even if the commissioning mother’s eggs were used.

For me this highlights an obvious oversight – the child’s legal position with the commissioning mother, which remains in a legal limbo. The guidelines do not deal with how a child born through a surrogacy arrangement can establish a legal relationship with the commissioning mother, even when her eggs have been used. Under Irish law she is not recognised as the mother, and so further legislation would be required to resolve this.

It is clear from the guidelines that a passport will not be issued until paternity and guardianship has been established in a court of law. This could take months.

The best position is that the child would be issued with an emergency travel certificate (ETC), which is a discretionary relief and not guaranteed.

To ground an application for an ETC, a number of specific documents are required, including the absolute pre-requisite for establishing paternity – a DNA test. A DNA report will have to be obtained from an independent laboratory approved by the Irish passport services (no laboratories have been named) and the tests must be carried out in accordance with the guidelines. In addition to this report an affidavit must also be provided by the person taking the samples.

Furthermore, the guidelines set out certain undertakings the commissioning father will be required to give before such an ETC will be issued.

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