The surrogacy shoe fits Sarah Jessica Parker
but what are the options for Irish couples?
by Marion Campbell,
Expert in Family Law
Sarah Jessica Parker’s strong female following has largely been thanks to her shoe fashion and man-obsessed character, Carrie Bradshaw, but recently it is SJP’s personal family choices that are resonating with many women. Parker’s decision, along with husband, Matthew Broderick, to have children through surrogacy has highlighted an option that many other couples experiencing difficulty getting pregnant can explore.
In Ireland, IVF and adoption tend to receive more publicity than surrogacy, and so there is a general lack of understanding of what exactly is involved, and the legal implications, both for the child and parents.
With In-Vitro Fertilisation (IVF) the embryo, fertilised externally, is transferred back into its natural mother’s womb for gestation and delivery; in the case of surrogacy, it is transferred into the womb of another woman. Apart from her relatives, who may act as surrogates, the surrogate mother will not usually be genetically related to the child she is carrying; however, in traditional surrogacy, still practiced in some countries, the surrogate mother is also the biological mother, cooperating with the male partner of the couple, to bear his, and her, child. With anonymous sperm and egg donors, the position becomes even more complex.
In surrogacy, a legal contract is entered into between the biological parents and the surrogate mother, and a fee is agreed. That all sounds quite straightforward; however, quite predictably, it’s the legal side of the situation that brings complications because, at present, Ireland has no legislation in place to cover potential legal issues that arise.
Briefly, couples should know that, under present Irish law, the legal status of their biological child is as follows:
- The birth mother of a child born through surrogacy is always the legal mother and the birth certificate of the infant will reflect this.
- If the surrogate mother is married, her husband is considered the legal father of the child and is registered as such on the birth certificate.
- If the surrogate mother is single, then her name alone appears on the birth certificate.
- Neither of the biological parents has automatic rights of guardianship over the child.
One option for Irish couples considering surrogacy is to legally adopt their own child after it is born, but they must ensure beforehand that they can actually qualify as adoptive parents under our very stringent screening process.
Advances in modern reproduction technology have significant implications on the legal issues of guardianship. Recently the Supreme Court deliberated on a case involving the fate of frozen embryos of an estranged couple, and noted that Ireland has no legislation on Surrogacy Agreements or Surrogacy Laws. With a number of surrogate-related legal cases pending, and a growth in surrogacy, Ireland is about to witness significant deliberations in this field.
Surrogacy offers hope and great opportunities to ‘infertile’ couples, but given the current legal limbo in Ireland, they should take proper legal advice before proceeding.
Marion can be contacted at marion@mcsolicitors.ie or 01 475 9345 and visit mcsolicitors.ie
