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Monday, March 23, 2015

The continuing legal vacuum on surrogacy in Irish context while business is booming globally

For childless couples in particular surrogacy is an option. But it is also one surrounded by great legal uncertainty. And many involved in surrogacy arrangements fail to appreciate the complexities. Frequently couples who have a surrogate bear a child, are not fully prepared for the medical and legal complications that may arise later – whether the birth takes place outside the State, or within this jurisdiction.

There is no legislation on surrogacy in Ireland, and surrogacy contracts are not enforceable here. The surrogate mother is regarded as the legal parent of the child.

To change that status, and so enable the biological parents to have a legal relationship with the child, is not easy – without first changing the law. The surrogate mother could place the child for adoption, in the expectation the biological couple would adopt it. However, under the State’s adoption rules, there is no guarantee that such a placement would be made. Private adoptions are not allowed. This illustrates just one of the many uncertainties that surround surrogacy.

Not surprisingly, more people – deterred by the legal complexity and difficulty attaching to the issue in Ireland – have sought a remedy abroad. But there too, the obstacles remain considerable: the financial cost of surrogacy arrangements can be high, and problems on the legal status of children, and on travel documents can arise.

In 2005 the Commission on Assisted Human Reproduction recommended that a child born through surrogacy should be presumed to be that of the couple who made the arrangement. But last November, the Supreme Court ruled that the genetic mother of twins born to a surrogate could not be recorded as their legal mother. It also said the surrogacy issue, and that of assisted human reproduction, were really matters for the legislature to address. Minister for Health Leo Varadkar has promised legislation to regulate surrogacy. Even so such legislation, while long over due, cannot deal with the practice of overseas surrogacy. Indeed greater domestic regulation may well serve to increase demand for arrangements made in other countries.


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