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THE LEGAL PROCESS FOR INTENDED PARENTS IN IRELAND

It has been our great pleasure and privilege to have worked with Irish couples who have pursued their route to parenthood via surrogacy.

It is essential that any person who is considering pursuing surrogacy as a route to parenthood must ensure that they are as fully informed about the process as is possible, that they ask questions of the clinic/agency, research the clinic/agency and complete their due diligence in relation to the entire process. It is important that you read carefully all of the documentation that you will receive from the clinic and agency to make sure that the documentation includes and clearly reflects what you have discussed and agreed with the clinic and agency. We advise all intended parents to retain an independent lawyer in the country of birth to review and provide legal advice in relation to these documents and agreements. It is essential that your lawyer in the country of birth advises you in relation to whether your surrogacy journey is legal in the country of birth, what legal relationship the surrogate mother has with your child at birth, whether the surrogacy agreement is enforceable, whether the terms in the surrogacy agreement can be relied upon in the court in the country of birth and the procedure you must follow to allow you exit the country of birth and travel home with your child. In some countries you will have to complete a court procedure. In Greece this court procedure takes place during the pregnancy. In Canada and USA a Court procedure takes place after the baby is born. It is important that your lawyer in the country of birth advises you fully about these court procedures. Your independent lawyer in the country of birth cannot represent the surrogate mother and advise her regarding the Irish court proceedings that will be served on her after you return to Ireland with your baby.

There is no surrogacy legislation in Ireland. In Ireland the woman who gives birth to the child is the “mother”. The “mother” is not defined by DNA evidence. This means that if the Irish woman is biologically related to the child but has not given birth to that child she is not legally defined in Ireland as the mother. The father’s paternity is decided by DNA evidence. The essential proof required by the Irish court for the Irish father to apply for a Declaration of Parentage is the DNA test result which shows that he is the biological parent of the child. When surrogacy is pursued as a route to parenthood either through domestic surrogacy (where the baby is born in Ireland) or international surrogacy (where the baby is born overseas) an application to Irish court is required. The following Orders are applied for:-

  1. Declaration of Parentage
  2. Guardianship
  3. Custody
  4. An Order dispensing with the necessity to seek the consent of the surrogate mother for the issuance of the child’s Irish passport.

These Orders are applied for by the biological Irish father. The Irish Court proceedings will be served on the surrogate mother and her independent lawyer in the country of birth and on the office of the Chief State Solicitors Office. The office of the Chief State Solicitors is joined to the proceedings as a Notice Party. The Chief State Solicitor office will provide a list of proofs they require to be complied with before they will confirm to the court that they are not objecting to the Irish father’s applications being ruled by the court. This court application can be listed in the Family High Court or Circuit Family Court. This is a complex, specialised area of law. These proceedings are in camera family law proceedings which means that they take place privately with no identifying information or details published.  The intended parents and the legal representatives are the only parties allowed be in attendance in the court.

The Court Order will usually issue to your solicitor’s office approximately a week to 2 weeks after the court orders have been ruled. The court orders documents that your need to apply to the Irish passport office for your baby’s Irish passport to be retained.

There are many WhatsApp support groups and Facebook groups that provide huge, practical and emotional support and guidance to people and couples interested in pursuing surrogacy throughout the entire entirety of their surrogacy journey.

It is best to take legal advice as early as possible so that you know what the legal requirements are and what steps you will need to take here and, in the country, where your child is born.

If you would like any further advice or to arrange a zoom or phone consultation, please do not hesitate to contact me by email; [email protected] or telephone 056-7721063.