Ministers approve plans to recognise international surrogacy for first time

Ministers have approved plans to recognise international surrogacy for the first time, both retrospectively and for future arrangements.

Details of the measures, seen by The Irish Times, were presented to Ministers on Tuesday and reveal the new process that intending parents will have to go through to become fully legally recognised for the first time.

For future prospective international surrogacies there will be a two-step process. This will involve a pre-conception approval by a new Assisted Human Reproduction Regulatory Authority (AHRRA) and then a post-birth Circuit Court process for the granting of a parental order for surrogacy.

There is a long list of criteria that both the intending parents and surrogate mother will have to abide by, however. Firstly, the jurisdiction in which the surrogacy is proposed to take place must be included on a list of approved surrogacy jurisdictions established and maintained by the new authority.

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The surrogacy agreement must not be commercial in nature and has to stick to certain rules whereby the surrogate can be paid only reasonable expenses.

The relevant embryo will have to be created using the gametes of at least one intending parent but not an egg provided by the surrogate mother. The intending parents must be at least 21 years old and must be unable to have a child without surrogacy.

At least one intending parent must have been resident in the State for a minimum of two years and they must have a reasonable expectation of living to parent a child until they turn 18.

The surrogate mother must be at least 25 years old and must have been resident in her jurisdiction for at least two years. She must have previously given birth to a child, but must have acted as a surrogate mother on only one previous occasion. She has to provide full consent and receive independent legal advice as well as counselling.

When the child is born outside the State, the intending parents will apply for an emergency travel certificate from the relevant Irish embassy or consulate to be able to bring the child back to Ireland. They must then apply to the Circuit Court for a parental order for surrogacy between 28 days to six months after the birth.

A second major part of the plans presented to Cabinet involve the retrospective recognition of surrogacies which have also taken place in Ireland and abroad. The Government believes that up to 500 families could benefit from this.

Parents who wish to get a retrospective parental order must show the surrogacy arrangement was not unlawful, that the pregnancy was intended as a surrogacy and that the egg was not provided by the surrogate mother, among other stipulations. Parents will also be able to apply to the High Court for the orders before the new authority is set up under further new measures agreed by Ministers, to recognise the challenges these families currently face.

At present, surrogacy in Ireland, whether altruistic or commercial, is unregulated. Most surrogacies are undertaken abroad through commercial arrangements, often in Ukraine but also in Canada and the United States. Three Ministers have been working on the new surrogacy measures: Minister for Health Stephen Donnelly, Minister for Justice Helen McEntee and Minister for Children Roderic O’Gorman.

Fine Gael senator Mary Seery Kearney, a long-time campaigner on the issue of surrogacy and advocate for families, said the new measures would give “much-needed certainty and legal protection to intended parents and children”.

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