There is no provision for surrogacy in Irish law and it was firstly in February this year, when official guidelines for establishing Irish citizenship for children born through surrogacy programs overseas and for obtaining travel documents for such children, have been published.
These guidelines, published by Minister for Justice Alan Shatter, state that in establishing parentage of a child Irish law is applied.
According to the Irish legislation, the woman who gives birth to a child is its mother, whether or not the child is born using her genetic material. The guidelines state that family responsibilities cannot be subject to the law of surrogacy contract and cannot be bought or sold. “The surrogate mother and the child will have a lifelong relationship with each other,” it says.
Thus, obtaining parental rights will require the father establishing he is the genetic father of the child born by the surrogate. Paternal rights of the genetic father can be recognised by applying to the Circuit Court for a declaration of parentage, which will normally require DNA evidence from an independent, reliable source. It is important that DNA evidence from a home kit or from any body linked to a surrogacy agency will not be acceptable.
Along with the declaration of parentage, the father must apply for guardianship of the child.
Irish law stipulates that only a parent or guardian can apply for a passport for a child, and a passport will generally be issued only where guardianship on the part of an Irish citizen has been established. In the meantime, the authorities may issue an emergency travel certificate to enable the child to enter Ireland.
This will require the consent of all the child’s guardians, including the surrogate and her husband, if any. Further, the adults bringing the child into the State must provide a written undertaking that they will notify their local health centre of the child’s presence in Ireland within two working days. The genetic father must provide an undertaking that he will seek declarations of parentage and guardianship from the Circuit Court within 10 days, or 20 in exceptional circumstances.
The surrogate mother has to provide her full, free and informed consent to the procedure; the application form must be translated into her own language if necessary.
The guidelines finally stress upon that couples looking for surrogacy arrangements overseas should obtain expert legal advice before making any arrangements. The intended parents have to be aware that establishing of legal parentage and Irish citizenship would all take time and may involve more than one application to an Irish court.
On the whole, the aforementioned guidelines suggest the following procedure for obtaining Irish citizenship for children born through international surrogacy:
1. The gametal cells of the intended father have to be used for IVF and embryo transfer procedure.
2. Prior to starting the program, the couple must take professional legal advice and lodge the court applications needed to establish his parentage.
3. Upon the child(ren)’s birth, the surrogate mother must give her full, free and informed consent to seeking an Emergency Travel Certificate and/or a passport for the child(ren).
4. The intended father shall obtain DNA evidence of his genetic link to the child(ren) to demonstrate the child may be an Irish citizen.
5. Standard medical tests for newborns should be carried out in advance of travel.
6. The intended parents must provide a declaration that they will inform their local health centre of the child’s presence within two days of their arrival in Ireland.
7. The genetic father shall submit a written undertaking that he will apply to the Circuit Court for declarations of parentage and guardianship. The Attorney General must be informed.
8. When declared the parent and guardian, the father may seek an Irish passport for the child.