Couples from Ireland considering cross-border surrogacy have long been left in legal limbo when trying to secure citizenship for children born to surrogates outside of Ireland.
This has caused many children to be left in legal limbo, creating heartache and frustration for Irish couples who do IVF treatments abroad using the services of a surrogate also living outside of Ireland.
Recently, the Minister for Justice, Equality, and Defence in Ireland has published guidance for Irish couples when using surrogacy arrangement abroad.
While this clarifies how parentage and citizenship are established, it focuses on establishing the parentage of the father if his sperm were used. If it was not, then the child may not be able to establish an entitlement to Irish citizenship, even if the mother’s egg were used. Under Irish law, the person giving birth is considered the legal mother, and if she is married, her husband is presumed to be the legal father. This new guidance outlines the procedure for overturning that presumption by establishing the father’s parentage (assuming his sperm was used) through DNA testing. However, it does not allow for the intended parent (mother) to establish parentage through DNA testing even if her eggs were used. And, it seems quite clear that it would likely be impossible to establish Irish citizenship when IVF treatments using donor embryos or donor eggs and donor sperm transferred to a surrogate are used and there is no DNA link to the intended parents.
Unfortunately, none of the parentage documents can be filed until after the child is born. This means that unless they are able to obtain emergency travel certificates for the child (which are discretionary and not guaranteed), the parents could be stuck in the country where their child was born for months waiting for the proper documents and authorization to return home with their child.
So, while the guidelines help clear up the process, hopefully it will also spur further legislation that would resolve the other inequities of the current laws related to fertility and assisted reproduction.