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Family Law Solicitors

Starting a Family: Surrogacy

Saturday, 20 February 2016

The Irish Times

Paul Cullen

 The lack of a legal framework or ethical rules in Ireland has proved no barrier to the growth of surrogacy as a niche option for intending parents. Like many social revolutions it is driven by technology, but celebrity endorsement along with the globalisation of the business has made surrogacy more attractive and affordable to a wider range of people, including same-sex couples.

It remains a complex and cumbersome way of starting a family, often fraught with pitfalls and moral questions. Legislation is urgently needed in Ireland, but this is some years off. And when it does come, it is likely to leave some people disappointed.

As things stand, a woman who gives birth to a child in Ireland is deemed to be the mother, even in situations where she is acting as a surrogate. Yet in other countries where surrogacy is popular – India, for example – a couple organising a surrogacy can be registered as the parents of the child born under the arrangement.

The Irish legal position was confirmed by a 2013 Supreme Court case that ruled against the genetic mother of twins born to a surrogate on the parental issue. Any new law will have to come down on one side or other of this question.

 In traditional surrogacy, the woman giving birth to the child is genetically related to it. Such arrangements are often agreed on altruistic terms. In the court case mentioned above, for example, the woman taking the case was unable to bear children and her sister acted as a surrogate. Usually, no money changes hands, though expenses may be covered.

However, gestational surrogacy is growing in popularity. A baby may be conceived using IVF and implanted in the surrogate’s womb, and therefore has no genetic link to the surrogate. Costs vary hugely, from over €150,000 in certain US states to €35,000 in India. The surrogate mother might receive about a tenth of these sums.

The extent of the trade is revealed by the figures compiled by Australian not-for-profit Families Through Surrogacy, which discourages the exploitation of the women involved. Its survey suggests hundreds of Irish people have gone down the surrogacy route in recent years, although no one can say what the exact numbers are.

A legal minefield awaits families returning to Ireland with children born through surrogacy. US-born children at least have an American passport, but most others need to apply for emergency travel visas from the Irish authorities.

Regularising their status involves an application for guardianship by the father and a declaration of parentage. Only then can an Irish passport can be obtained. Success is not guaranteed – the father must have a genetic link to the child – and the process is time- consuming and costly (up to €14,000). Some children have ended up stateless.

The options available are constantly changing. India, which was home to a $2.3 billion-a-year surrogacy industry, has recently banned arrangements made by foreign couples and single people.