| |
|
| |
| SURROGACY |
| |
| | | | | What is Surrogacy? | | | | Surrogacy is when another woman carries and gives birth to a baby for the couple who want to have a child. | | | | | | Seek legal advice | | | Surrogacy involves complicated legal issues and Marion Campbell Family Law Solicitors recommends that you seek your own legal advice before making any such decisions.
It is also advisable to receive Counselling before starting the Surrogacy process to help you consider the questions involved. There are no Surrogacy Laws on the Statute Books at present in Ireland. | | | | A Commission on Assisted Human Reproduction was established in March 2000 by Mr Michael Martin TD, Minister for Health and Children with the following terms of reference: |
| |
|
| |
| To prepare a Report on the possible approaches to the regulation of all aspects of Assisted Human Reproduction and the social, ethical and legal factors to be taken into account in determining public policy in this area. |
| |
|
| |
| In their executive summary the Commission referred to Article 40.3.3 of the Irish Constitution which provides constitutional protection for the “unborn”. The Commission indicated that it was not clear whether this protection applies from fertilization or from some subsequent point in the process. This lack of clarity had implications for the provisions of AHR services in Ireland. Clarification could only be sought in two ways either from the Supreme Court or by way of Constitutional referendum. The Commission made 40 recommendations amongst which were: |
| |
 | A guideline should be put in place to govern the freezing and storage of “gametes” and the use of frozen gametes. The regulatory body should in accordance with statutory guidelines have power to address cases where gametes are abandoned, where the commissioning couple cannot agree on a course of action, where couples separate or where one or both partners dies or becomes incapacitated. |
|
| |
| The embryo formed by IVF should not attract legal protection until placed in the human body at which stage it should attract the same level of protection as the embryo formed in-vitro. |
|
| |
| Any child born through use of donated gametes or embryos should on maturity be able to identify the donors involved in his/her conception. |
|
| |
| In donor programmes, the intent of all parties involved – that the donor will not have any legal relationship with the child and that the woman who gives birth to the child will be the child’s mother should be used as the basis for this assignment of legal parentage. |
|
| |
| In cases involving sperm donation there should be a requirement that the partner, if any of the sperm recipient also gives a legal commitment to be recognized as the child’s parent. |
|
| |
| In the case of a child born through ovum donation and in the case of a child resulting from an embryo donation, the gestational mother should be recognized as the legal mother of the child and her partner if any, should be recognized as the child’s second legal parent. |
|
| |
| The child born through Surrogacy should be presumed to be that of the commissioning couple. In the Frozen Embryo case which was heard before the Supreme Court on the 2nd February 2009 (Judgment still awaited), Lawyers for the State told the Supreme Court that an embryo created as a result of fertility treatment has no legal status here, is not entitled to constitutional protection unless it is implanted in a woman’s womb and may be legally destroyed prior to any such implantation. This was a case which involved an Application by a separated mother to order a Dublin Clinic to release three frozen embryos to her with a view to her becoming pregnant again against the wishes of her estranged husband. |
|
| |
| In the absence of legislation the issue of “legal parentage” in Ireland of children born through donor programmes is very complicated. The Commission recommended that in donor programmes the intent of all parties involved that the donor will not have any legal relationship with the child and that the woman who gives birth to the child will be the child’s mother, should be used as the basis for the assignment of legal parentage. The application of this principle would necessitate the broadening of “traditional family structures” to encompass the social family as opposed to the biological family. |
| |
| |
| Problems regarding Adoption Law |
| |
| As the Law currently stands it is likely that the surrogate or birth mother would be considered to be the legal mother of the child. It would therefore be necessary for the commissioning person/persons to adopt the child in order to have a legal relationship with it. A commissioning man may apply for Guardianship rights of the child if he is the biological father of the child but his partner would not have any right to make such an Application. The Commission made four options in relation to the regulation of Surrogacy amongst which was extending the remit of the Adoption Board to include Surrogacy and also including in remit of a regulatory body for AHR. The Commission was of the view that a regulatory body for AHR was the most appropriate and recommended that that body should regulate a surrogacy and all issues pertaining thereto. |
| |
| |
| Our featured links: |
| |
 | | Circle Surrogacy | | | | Circle provides a full line of surrogacy and egg donation options, including the world's first "Guaranteed Baby" plan, offers a choice of specialized clinics at locations throughout the USA, a large selection of egg donors, and swift matching with carefully screened surrogates. | | | |
|
|
| |
| |
 | | Surrogate Pathways Ltd | | | | Surrogate Pathways - an international surrogacy company operating globally to help couples find surrogate mothers to create their families. They do not work for profit, they simply work to help couples find their ideal surrogate and likewise surrogates to find couples who they can help in the UK. | | | |
|
|
| |
| |
| News Item: |
| |
| Date | News Item | Link | | January 2010 | Legal issues arrising out of Surrogacy | Click to view |
|
| |
| |
| Relevant articles: |
| |
| Subject | Publication | Link | | Surrogacy: the babies born into legal limbo | The Irish Times
(22nd November '11) | Click to view | | Couple seek passport for surrogate baby daughter | The Irish Times
(1st March '11) | Click to view | | Two men and a baby | The Sunday Independent
(23rd January '11) | Click to view | | The legal quagmire that is surrogate parenting | The Irish Times
(10th July '10) | Click to view | | Legislation to allow adoption of married parents’ children | The Irish Times
(7th July '10) | Click to view | | Access for father ordered in case of lesbian mother | The Irish Times
(7th June '10) | Click to view | | Surrogacy seminar raises issues of costs and difficulty | The Irish Times
(20th May '10) | Click to view | | Gay couple spend €100k to have a surrogate baby | The Irish Daily Mail
(21st April '10) | Click to view | | A baby by another woman | The Irish Times
(20th April '10) | Click to view | | Legislating for surrogacy will face many challenges | The Irish Times
(19th April '10) | Click to view | | Court again calls for law on assisted reproduction | Irish Times
(16th December '09) | Click to view | | Woman loses appeal over frozen embryos | Irish Times
(15th December '09) | Click to view | | Gay sperm donor given access to his son | Irish Times
(11th December '09) | Click to view | | Warning over Rights of Child in Assisted Reproduction | Irish Times
(7th December '09) | Click to view | | Statement by the Institute of Obstetricians and Gynaecologists, RCPI regarding their role in the approval of IVF surrogacy | RCPI Press release
(27th February '09) | Click to view | | Twins born after possible first surrogate pregnancy in State | Irish Times
(26th February '09) | Click to view | | 'I've had eight babies for other people' | Irish Independent
(4th February '08) | Click to view | | Gay fathers case prompts calls for surrogacy legislation | Irish Examiner
(9th August '01) | Click to view |
|
| |
| |
 For further information, please contact Marion Campbell Solicitors by calling (01) 475 9345, or by filling out an on-line enquiry form. |
