Fertility Treatment / Surrogacy

Fiona Duffy’s reputation in the area of fertility law is well recognised and respected both internationally and in Ireland. She can offer legal advice on all aspects of this emerging, cutting edge and complex area of law, including, but not limited, to advice on fertility treatment (IVF), surrogacy, donor conception, paternity, stem cell research and related matters.

Fertility Law

Fiona Duffy has extensive knowledge and in depth experience on all aspects of fertility law and related areas. She advises clients who have undergone or are contemplating fertility treatment/surrogacy both here and abroad. She works closely with lawyers acting in other jurisdictions where surrogacy is permitted. If you wish to obtain advice in relation to any aspect of AHR, Fertility Treatment or Surrogacy matters please contact Fiona Duffy at fiona.duffy@pforeilly.ie

Read more about AHR, Donor Conceived Children, Surrogacy and the future around regulation of these areas in Ireland by clicking on tabs below.

Assisted Human Reproduction 

Certain Assisted Human Reproduction procedures are now regulated in Ireland. The Irish Medical Council, the body responsible for the regulation of registered doctors in Ireland is charged with producing a Guide to Professional Conduct and Ethics for Registered Medical Practitioners on a regular basis. The latest guide (8th) is dated 17th May 2016. This Guide was updated and amended after the commencement of the Health (Regulation and Termination of Pregnancy) Act 2018.  

The guide provides guidance to doctors on their professional conduct and ethics in all areas of medicine including Assisted Human Reproduction.

Of interest in relation to AHR the guidelines provide:

“If you offer donor programmes to patients, you must have strong governance structures and keep accurate records so that the identity of the donor can be traced.  Donor programmes should be altruistic and non-commercial.  You should also comply with industry accreditation standards for donation programmes.”

Click here to view the Guide

Parts 2 and 3 of the Children and Family Relationships Act 2015 were commenced in May 2020.  These Parts of the Act contain provisions for the assignment of parentage in the case of a child born through donor conception in Ireland and set out the obligations of fertility clinics when providing donor conception services. In essence the legislation provides a path for same sex female couple to be registered as parents of a child born to one of them through DAHR.  This legislation does not regulate Surrogacy.

The EU Tissues Directives of 2004 and 2006 have been transposed into Irish Law. Their main purpose is to regulate activities concerning and consisting of the donation, procurement, testing, processing, preservation and storage for distribution of tissues or cells for human applications. Any establishment which carries out any such activity is required to be authorised by the Competent Authority. The Irish Medicines Board is the competent authority in this jurisdiction.

Donor Conceived Children

Parts 2 and 3 of The Children and Family Relationships Act 2015 define parent in circumstances where a child is conceived through donor conception. This Act does not apply to surrogacy. While the Act was signed into law in 2015, Parts 2 and 3 were only commenced in May 2020. 

Parts 2 and 3 set out the steps which must be taken to ensure that an intending non biological parent can be registered as a parent of a child born through DAHR. This legislation also contains provision for the retrospective recognition of the second female as a parent of a child born to her partner. The legislation sets out the procedure to enable the birth certificate of such child amended so as to permit the second intending parent to be named as a parent on it. Parts 2 and 3 set out the steps to be taken by the fertility clinics, to ensure that everything is done correctly. The clinics are required to pass details of the arrangement to the Minister for Health and to retain certain information and records into the future.

Parts 2 and 3 also provide for the establishment and maintenance of a National Donor-Conceived Person’s Register. 

Surrogacy

There is currently no legislation governing Surrogacy in Ireland. It is not unlawful nor is it regulated.

Only the genetically related male in a surrogacy arrangement can have his legal relationship with the child established under Irish law. This is done by means of an application to the court for an Order of Declaration of Parentage followed by a Guardianship and Custody application. The position of the intending mother or second intending parent is precarious.  The intending mother is not recognised under Irish Law as the mother of the child. This is the position even if she is genetically related to the child.   In short there is no possibility for the establishment of a legal relationship between a child born through Surrogacy and the second intending parent. The birth mother, under Irish law, is the mother of the child.  This is the position irrespective of who is named on the child’s birth certificate as parent.

The High Court was asked to consider these issues in the case of MR and DR v An tArd Chláraitheoir 2014. In this case the genetic / biological mother wished to be registered as mother on the birth certificates of twins born through surrogacy in Ireland.

The High Court decision delivered on the 5th March 2013 found on the facts of this case for the commissioning mother and made a declaration that she was the mother of the twins. This decision was overturned on Appeal to the Supreme Court. 

Judgement was delivered on the 7th November 2014.

Click here and here to view the Judgements

When the Supreme Court was considering these issues the State indicated its intention to legislate for surrogacy.  The Heads of a Bill containing provision for surrogacy was published in February 2014.  Unfortunately when the Bill was finally published in 2015 it contained no provision whatsoever for surrogacy.

For the second intending parent the only ray of hope at the moment is contained in Section 49 of the Children and Family Relationships Act 2015. Under Section 49 it is now possible for the court, subject to certain pre-conditions, to appoint a person, who is not a parent of the child, as a guardian of that child.

While guardianship falls short of being a parent, it does provide for some recognition of the relationship between the second intending parent and the child.  It does not however create a parental relationship.

This guardianship application cannot be made until a period of two years during which the child has been living with and cared for by the second intending parent. It is therefore advisable for the father to appoint his spouse, civil partner or co-habitee as a testamentary guardian of the child in the interim.

At the time of writing we are only aware of one IVF clinic in Ireland licenced to provide surrogacy services. This means that Irish couples desperately wanting to have children through surrogacy are travelling abroad for fertility treatment.

 

International surrogacy creates additional difficulties and problems. Even if the intending parents are named on the birth certificate as parents this is not recognised by the Irish State. This means that steps must be taken to regularise the legal status of the child, his/her parentage and citizenship as soon as the child returns to Ireland.

Getting back to Ireland with the child can cause delays particularly if the child is dependant on Irish travel papers to travel to Ireland.

Surrogacy is legal and regulated in Ukraine and in some States in the USA and in Canada, to name a few.  These countries have become the destinations of choice for many Irish couples.

If you are considering travelling abroad to have a child through surrogacy it is important to take legal advice in Ireland and in the country where the surrogacy arrangement is going to take place before anything is signed.

If you are an Irish citizen living abroad and you are planning to have a child through surrogacy you need to take Irish legal advice before you start your journey, particularly if you wish your child to have Irish citizenship.

Fiona Duffy has extensive knowledge of the law on Assisted Human Reproduction. In addition, she has years of experience dealing with domestic and international surrogacy arrangements. She advises clients who have undergone or are contemplating fertility treatment/surrogacy both here and abroad.  She works closely with and has a vast network of lawyers contacts who practice in other countries where surrogacy is permitted.  If you wish to obtain advice in relation to any aspect of AHR please contact:- Fiona Duffy at fiona.duffy@pforeilly.ie

Going Forward

The General Scheme of Assisted Human Reproduction Bill was published in October 2017.  Pre-Legislative scrutiny was carried out by The Department of Health joint Oireachtas Committee. Their report was published in July 2019.

Since there had been much dialogue and debate around the proposed legislation. The Bill has not yet been published.

It is proposed to legalise and regulate the practice of surrogacy in Ireland.  In its current format it not proposed to provide a pathway for the recognition of the relationship between the intending parents and the child born abroad through surrogacy.  Nor does the draft legislation contain any provision for the retrospective establishment, under Irish law, of a legal relationship between a child born through surrogacy prior to commencement of the new laws and the non- biological intending parent. This means that these children will continue to remain in a legal limbo.

Fiona Duffy has extensive knowledge and in depth experience on all aspects of fertility law and related areas.  She advises clients who have undergone or are contemplating fertility treatment/surrogacy both here and abroad.  She works closely with lawyers acting in other jurisdictions where surrogacy is permitted.  If you wish to obtain advice in relation to any aspect of AHR please contact:-

If you have a query in relation to fertility treatment or surrogacy matters please contact Fiona Duffy at fiona.duffy@pforeilly.ie

Meet the team – Fertility Law

Fiona Duffy:
• is on the board of Merrion Fertility
• is a member of the Circuit Court Rules Committee
• is a member of the Solicitors Disciplinary Tribunal
• is a member of the Litigation Committee of the Law Society of Ireland.  She was vice-Chair for two years followed by two years as Chair.

• is a member of the UK & Ireland LGBT Family Law Institute.  In addition she works closely with LGBT Ireland and is currently working with LGBT Ireland in relation to the establishment of a legislative framework for AHR including surrogacy in Ireland.

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