International Surrogacy – Difficulties With Irish Law
Surrogacy which is widely practised in the Ukraine, India, and the USA has become a real option for Irish Couples in dealing with infertility. It is not however without it’s pitfalls and is becoming more and more problematic and fraught with difficulties.
Surrogacy is legal in certain States in America. Children born through surrogacy in those States are American citizens and therefore immediately entitled to an American passport allowing them to travel out of the jurisdiction and back to Ireland.
In the Ukraine where surrogacy is well regulated, the child born through surrogacy is not regarded as a Ukranian citizen. The commissioning couple, and not the surrogate, are registered on the birth certificate as parents of the child. Not being a Ukranian citizen the child is not entitled to a Ukranian passport and therefore will require a passport or travel papers from the Irish authorities to enable the child to leave the Ukraine.
Entry to the Ukraine by EU citizens does not require a visa, providing the stay does not exceed 90 days. Up until recently, the Irish authorities have facilitated travel to Ireland by a child born through surrogacy, by providing an emergency travel certificate. This is no longer the case. Now, in advance of providing any form of travel documentation for the child, the Department of Foreign Affairs in Dublin is insisting on evidence of entitlement to a passport, and consent from all possible guardians. Anyone from this jurisdiction intending to go to the Ukraine to have a child through surrogacy should be aware of these difficulties and exercise caution as they could be facing a long legal battle to get the necessary papers to bring the child home.
Many Irish couples are going to India to avail of surrogacy services. Another cautionary note here. Draft legislation concerning new surrogacy laws is currently being debated in the Indian Parliament. If passed, India will recognise Surrogacy Agreements as being legally binding.
However, one of the provisions in the legislation is that a foreign commissioning couples must first prove that surrogacy is permitted in their home country, and that if they do have a child through surrogacy that that child will be allowed to enter their country and be recognised as the biological child of one or both of the commissioning couple. If this legislation is passed and having regard to the change of attitude by the Irish authorities as referred to above, it would seem that Irish couples will be precluded from availing of surrogacy services in India in the future.
Under the proposed new legislation, a local guardian must be appointed. This local guardian will be responsible for the baby until collected by the commissioning couple. The draft legislation contains provision for the handing over of the baby to a local adoption agency in the event that the baby born through a surrogacy agreement is not collected by the commissioning parents within a month of the birth of the baby.
It would also appear that gay and lesbian couples may be precluded from availing of surrogacy services in India. Indian law does not recognise or approve of gay marital relationships in which case it is questionable whether a foreign gay couple have the legal status to parent a child through surrogacy in India. There is one such case exercising the Delhi Commission for the Protection of Child Rights following the birth of twins to a gay Spanish couple using a donated egg.
Couple Seek Passport for Surrogate Baby Daughter (Irish Times 1st March 2011) http://www.irishtimes.com/newspaper/ireland/2011/0301/1224291080252.html
Couple says surrogate child ‘stuck in Ukraine’ (Irish Independent 1st March 2011) http://www.independent.ie/national-news/courts/couple-says-surrogate-child-stuck-in-ukraine-2560021.html
Couple seek passport for daughter born via surrogacy (Irish Examiner 1st March 2011) http://www.irishexaminer.ie/ireland/couple-seek-passport-for-daughter-born-via-surrogacy-146790.html#ixzz1FQwHNrwk
Tanaiste and Minister for Foreign Affairs, Eamon Gilmore, tells Dail is not possible to issue a passport to a child born through surrogacy unless questions of citizenship, guardianship and parental rights are comprehensively addressed. (Oireachtas Debate 21st July 2011)