One could be forgiven for thinking that once technology has advanced to such a stage to allow couples that have hitherto only dreamed of having a child that is biologically their own, to have such a child through surrogacy, that a simple system would be in place to deal with the legalising of parenthood. However, in Ireland, that is unfortunately not the case.
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One could be forgiven for thinking that once technology has advanced to such a stage to allow couples that have hitherto only dreamed of having a child that is biologically their own, to have such a child through surrogacy, that a simple system would be in place to deal with the legalising of parenthood. However, in Ireland, that is unfortunately not the case.

Why choose D’Arcy Horan?

We know that people who embark on surrogacy have been through an incredibly difficult time trying to conceive, before deciding to have a baby through surrogacy. Often it is a last resort, and all other avenues have been spent. Your highest wish, after the baby has been born, is to bring it to Ireland and get on with your lives. Unfortunately, we are aware that things aren’t that simple where surrogacy is concerned. There is no legislation in Ireland that legislates for surrogacy and the quest for legal parenthood can seem very daunting. We have a team of people that will try to ensure that you are guided through the legal labyrinth, to reach the end goal.

Our 7 step plan for your Surrogacy Journey:

STEP 1 – OBTAIN LEGAL ADVICE
At D’Arcy Horan & Co. we offer legal advice to couples and individuals who are contemplating commencing the surrogacy journey. It is vital before commencing the journey to ensure that you have the correct advice regarding the legalities of surrogacy in Ireland, the requirements for getting your baby back and obtaining legal parenthood.

When you come in for an initial consultation, we will be able to have a chat about your particular situation and provide you with the legal advice you require. We will also be able to answer any initial questions that you may have.

STEP 2 – IDENTIFY A DESTINATION/CLINIC
Deciding which country/surrogacy clinic to engage is a very personal decision for intended parents. Our various clients have chosen one clinic/country over another for their own reasons. Find a clinic that you feel comfortable with and that has staff with whom you find it easy to communicate; in person, on the phone and by email. This clinic will be your point of contact for the gestation period. IP’s will have a raft of information and choices and we are happy to give guidance; the choice of destination will of course be yours.

STEP 3 – SIGN SURROGACY AGREEMENT/DONOR AGREEMENT
It is vital that you sign a surrogacy agreement. This is an agreement between you (the intended parents) the surrogate and the clinic. This must be done before embryo transfer.

STEP 4 – PREPARATION FOR ARRIVAL
In advance of the arrival of the baby (or babies as often is the case), we at D’Arcy Horan & Co. will have prepared all paperwork at least 4 weeks in advance of your due date. We will be liaising with the clinic and your foreign lawyer in order to finalise all documents that will be required immediately following the birth for your return to Ireland. We will also organise for your DNA testing kit to be sent to your destination of choice.

STEP 5 – BIRTH & EXIT STRATEGY
This is perhaps the most exciting step on your surrogacy journey. As we are all aware babies are unpredictable and may arrive early, late or just on time. We generally advise clients to be prepared to leave at the drop of a hat the nearer it gets to the due date. D’Arcy Horan & Co. will be able to advise you and guide you during this precious time to ensure that maximum time is available to spend with your new arrival(s) while leading to a smooth exit from the child’s country of birth.

STEP 6 – IRISH COURT APPLICATIONS
D’Arcy Horan & Co.’s team of surrogacy solicitors will have all documentation prepared and make all required preliminary applications immediately upon your return to Ireland within the required time. We aim to finalise of all legal matters including parentage, guardianship and custody for our clients as quickly as possible with minimum interruption and disruption to new family life.

STEP 7 – GUARDIANSHIP APPLICATION FOR MOTHER
Following a recent change to Irish Guardianship Laws, the mother can, after two years residing with the child, and if married to the father, apply for an order appointing her joint guardian of the child or children, otherwise she will have had to be cohabiting with the father for at least 3 years before the application. This is a straightforward application and firmly cements the family unit safely in Irish law.

Here are a number of answers to questions that we are frequently asked:
We are thinking of trying to have a baby through surrogacy. Can you help us find a surrogate mother?

No, we cannot help you find a surrogate mother. Neither will we advise on the contract (if any) you draw up between you and the surrogate mother.

Is there any point meeting one of your solicitors before starting the process of surrogacy?

Yes. There are a number of important factors you will have to consider before you embark on the journey of surrogacy, such as nationality/immigration in relation to getting your baby back home, which parent can obtain legal parenthood etc.

Is there any point meeting one of your solicitors before the baby is born?

Yes. There are a number of procedures that need to be set in motion before the child is born. For example, if the child has been born abroad, and the commissioning couple want to bring the baby back to Ireland, certain formalities will have to be complied with, before the baby will be given a passport or an emergency travel certificate. As a baby born to a surrogate is not automatically recognised as the child of the couple who have commissioned it, certain paperwork and court documents will have to be prepared before the baby is born, to ensure that the necessary applications to court can be made as soon as the baby is born.

I am the biological father of the child and appear on the birth certificate as such. Can I get a passport for the child?

Yes is the short answer. You will have to prove that you are the child’s biological father (that you donated the sperm) by getting DNA evidence from a “reliable source”. Your solicitor can liaise with the Department of Foreign Affairs, who will provide a list of recognised DNA laboratories in the country of birth. The surrogate mother will have to consent to the application for a passport. There is a difference between an Emergency Travel Document and a Passport.

The surrogate mother is married. Does that change anything?

Yes. If the surrogate mother is married, her husband is presumed to be the child’s father under Irish law, unless the contrary is proved. The surrogate’s husband is also a joint guardian of the child. This means that when applying for an Emergency Travel Document, he will also have to consent. You will have to go to court for a Declaration of Parentage to prove paternity and then you can apply for Guardianship.

I have provided my eggs for the embryo that was transferred to the surrogate and appear on the birth certificate as the mother. Am I the mother in Irish law?

No. The person who gives birth to the child is considered to be the child’s mother under Irish law, even if you have provided the eggs for the embryo. This might differ from the law in the country where the child was born.

Who can get a passport for the child?

Only the parent and/or guardian can apply for a passport, and until such time as the Irish Courts declare the father Guardian of the child, only the surrogate (and her husband - if married) can consent to the ETD.

We have a surrogacy agreement that states that I am the child’s mother.

Under Irish law family relationships, and the rights and duties that flow therefrom, cannot be subjected to the ordinary law of contract and cannot, in particular, be transferred to another person, bought, or sold. Until there is a change in the law in Ireland, you will not be recognised as the mother.

How do I get the child back to Ireland?

You will have to make sure that all the necessary paperwork is in order before you go to the country of birth. As soon as the child is born, you will have to have your solicitor on standby to make sure that all of the relevant papers are ready to be signed, which includes interpreters to translate for the surrogate mother and foreign legal advisors to make sure she understands what she is signing. To get an Emergency Travel Document for the child, the commissioning father will have to prove by DNA evidence that he is the child’s father, and get the surrogate mother’s consent (and if she is married, her husband’s). The commissioning father will have to provide undertakings to the Irish authorities that he will inform the HSE 2 days after he gets back to Ireland that he has brought the child into the State, and make applications for a Declaration of Parentage and Guardianship within 10 days.

I am the child’s biological father, and the child is now back in Ireland, what do I need to do?

You will need to get a Declaration of Parentage from the Irish Courts. You will need that in order to apply for Guardianship. However, it should be able to be done at the same time.

We have got the child back to Ireland. Why do we need to do anything else?

It is an offence under Irish law for someone who is not a parent, guardian or cohabitee of the parent or guardian or a relative of the child to look after a child full time for more than 14 days (there are certain exceptions). If you do not regularise your affairs within a specified timeline, you will be guilty of an offence. Furthermore, only a Guardian can make the important decisions about the child, i.e. with regards to schooling, or medical decisions.

The child’s passport states that I am the child’s father, am I automatically entitled to Guardianship?

No. Because you are not married to the surrogate mother, you are not automatically a guardian of the child under Irish law, even if you have been granted a Declaration of Parentage. Under Irish law you have the right to apply for Guardianship if you are the genetic father of the child.

What if the commissioning father is not biologically related to the child, but I (the commissioning mother) am?

The only way to legalise relationships with the child is by adopting it. You should be aware that this could take time and be a complicated process.

Can I get maternity leave after the child is born?

No, as the law stands, only the child’s mother is entitled to maternity leave. Unfortunately, the commissioning mother is not legally recognised as the child’s mother, and is therefore not entitled to maternity leave.

Can I as mother/ partner of the father become Guardian of the child?

Under recent legislation, if you are married to the father of the child, you can now apply to the Circuit Court for Guardianship, if at the date of the application you have been living with the child for 2 continuous years. If you are not married to the father, you will have had to have been cohabiting with him for 3 years, and the child for 2 at the date of the application.