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International Surrogacy

International Surrogacy

“international surrogacy”, in relation to a surrogacy jurisdiction, means a surrogacy agreement in the specified form—

  • entered into by— a surrogate mother who has been habitually and lawfully resident in that jurisdiction for not less than two years immediately preceding her entering into the agreement, and )           either— both intending parents, not less than one of whom has been habitually and lawfully resident in the State for not less than two years immediately preceding his or her entering into the agreement, or                in the case of a single intending parent, that intending parent where he or she has been habitually and lawfully resident in the State for not less than two years immediately preceding his or her entering into the agreement,
  • without prejudice to the generality of section 80, where the entering into that agreement by that surrogate mother and those intending parents or that intending parent, as the case may be, is lawful in that jurisdiction, and
  • under which the surrogacy the subject of the agreement is to be undertaken in that jurisdiction;

Foreign Jurisdiction

“legal practitioner (SJ)”, in relation to a surrogacy jurisdiction, means a person who is authorised (howsoever described) in that jurisdiction to provide legal advice on a surrogacy agreement (SJ) which may be, or has been, entered into for the purposes of a surrogacy the subject of that agreement which may be, or has been, undertaken in that jurisdiction;

“parental order” means an order granted by the court for the transfer of the parentage of a child;

“surrogacy jurisdiction” means a jurisdiction outside the State where—

  • the surrogacy the subject of a permitted international surrogacy may be lawfully undertaken, and
  • the embryo transfer concerned is to be undertaken and, the child (if any) resulting from that transfer is expected to be born.

The 2024 Act does not  relieve any person involved in any capacity in a surrogacy agreement (SJ) from compliance in all respects with the law of the surrogacy jurisdiction concerned relating to surrogacy in that jurisdiction.

Approval of Surrogacy Jurisdiction

The AHRRA may, after consultation with the Minister and the Minister for Foreign Affairs and having regard to the matters specified, by order approve a surrogacy jurisdiction specified in the order, with effect from a date specified in the order for the purpose, as a jurisdiction in which an international surrogacy may be undertaken if the AHRRA considers that such approval is appropriate in all the circumstances of the case.

The matters which the AHRRA shall have regard to for the purposes of deciding whether or not to approve a surrogacy jurisdiction as a jurisdiction in which an international surrogacy may be undertaken are as follows:

  • the law of the jurisdiction relating to surrogacy, including whether or not that law—permits a commercial surrogacy and requires intending parents or one of them (or, in the case of a single intending parent, that intending parent) to be resident or domiciled in the jurisdiction;
  • without prejudice to the generality of paragraph (a), the protections afforded under the law of the jurisdiction to children that may be born as a result of AHR treatment (SJ) in the event of any such children not receiving adequate care and protection;
  •  the ability of the AHRRA to monitor compliance with the provisions of this Part of an international surrogacy undertaken in the jurisdiction;
  • any civil or military activities, or potential civil or military activities, relating to the jurisdiction that may present a potential significant risk of harm to any person participating, in any capacity, in an international surrogacy undertaken in the jurisdiction;
  • the law of the jurisdiction relating to medical professionals undertaking surrogacy in the jurisdiction, in particular whether there is a regulatory authority (howsoever described) exercising oversight of such professionals and the nature and degree of such oversight;
  • the law of the jurisdiction relating to persons acting as intermediaries (if any) in the jurisdiction, in particular, whether there is a regulatory authority (howsoever described) exercising oversight of such intermediaries and the nature and degree of such oversight;

It also considers the extent to which the law of the jurisdiction—provides for the rights of pregnant women, including surrogate mothers, as regards their health, privacy and bodily autonomy, makes no distinction, as regards the rights referred, between pregnant women who are not surrogate mothers and pregnant women who are surrogate mothers and is enforced as regards the rights referred to above.

Information

Where the AHRRA approves a surrogacy jurisdiction as a jurisdiction in which an international surrogacy may be undertaken, it shall, on or before the date specified in the order concerned under as the date on which such approval shall take effect, prepare and publish on its website a document, for each type of AHR treatment (SJ) and in the official language (or one of the official languages) of that jurisdiction and, if that language is not English, also in English and Irish, setting out the basic information that it is satisfied that a person seeking, or potentially seeking, such type of AHR treatment (SJ) ought to know about such treatment.

Where the official language (or one of the official languages) of an approved surrogacy jurisdiction is not English, the AHRRA may publish an AHR information document (SJ) in English and Irish only if it is satisfied that the document is relevant only to the intending parents (or, in the case of a single intending parent, that intending parent) concerned.

The AHR information document (SJ) for a type of AHR treatment (SJ) to be provided pursuant to a surrogacy agreement (SJ) shall inform the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) involved of the following matters in relation to the law of the State:

  • that the surrogate mother will be the mother of any child born as a result of AHR treatment (SJ) provided pursuant to the agreement;
  • that the surrogate mother’s husband (if any) under a subsisting marriage will not be presumed to be the father of any child born as a result of AHR treatment (SJ) provided pursuant to the agreement;
  • that the intending parents (or, in the case of a single intending parent, that intending parent) will not, without a parental order, be the parents (or, in the case of a single intending parent, the parent) of any child born as a result of AHR treatment (SJ) provided pursuant to the agreement other than in the case of an intending parent who provided the sperm used in such treatment;
  • Where a relevant donation (SJG) will be used to create the embryo to be transferred to the surrogate mother pursuant to the agreement, the relevant donor (SJG) will not be a parent of the child;
  • that the information specified in section 99(1) will be recorded in the National Surrogacy Register in respect of—
    • the surrogate mother,
    • the intending parents (or, in the case of a single intending parent, that intending parent),
    • any child born as a result of AHR treatment (SJ) provided pursuant to the agreement, and
    • where a relevant donation (SJG) was used to create the embryo that was transferred pursuant to the agreement, the relevant donor (SJG);
  • that any person born as a result of AHR treatment (SJ) provided pursuant to the agreement may, in accordance with the provisions of Chapter 3— access the information pertaining to each party to the agreement recorded on the National Surrogacy Register, and                seek to contact any party to the agreement;
  • that, where a relevant donation (SJG) will be used to create the embryo to be transferred to the surrogate mother pursuant to the agreement, the relevant donor (SJG) is entitled to obtain from the National Surrogacy Register the information specified in section 107(2);
  • that the intending parents (or, in the case of a single intending parent, that intending parent) have (or has) an obligation under section 99(3) to cause the information specified in that section to be given by the AHR treatment provider (SJ) to the AHRRA;
  • having regard to the child’s right to know his or her origins, that it is desirable that— the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) keep updated,, the information in relation to him or her that is recorded on the National Surrogacy Register, and)               the intending parents (or, in the case of a single intending parent, that intending parent) inform the child, at an appropriate age, that he or she was born as a result of AHR treatment (SJ) provided pursuant to the agreement;
  • the right of the surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) to revoke, or revoke and replace, his or her section 87 consent.

Approval Conditions

The AHRRA will not approve a surrogacy agreement unless it is satisfied, based on available information, that none of the individuals involved poses a significant risk of harm or neglect to any child who may be born as a result of the treatment, or to any other child. To assess this, the AHRRA will request each relevant person to submit a form called a “section 85 return,” within a reasonable time.

The Minister will specify by regulation the type of information required in this form and any conditions under which it can be further disclosed. The regulations will prioritize the safety of the child, ensure the information requested is appropriate and proportionate, and protect any sensitive data from unnecessary disclosure unless required by law.

The AHRRA will ensure that all section 85 return forms comply with these regulations. If the AHRRA is not satisfied after reviewing the section 85 returns, it will issue a notice to the relevant persons, explaining why it is not satisfied. The AHRRA may also consider information obtained from sources other than the relevant person.

The AHRRA must retain all original or copies of the section 85 return, any notice issued, and any information obtained for at least 30 years. Additionally, the Minister must consult the AHRRA before making further regulations under this provision.

A relevant person refers to each intending parent (or in the case of a single intending parent, their spouse, civil partner, or cohabitant) and, if applicable, the surrogate mother and her spouse, civil partner, or cohabitant.

The AHRRA must ensure that AHR counselling is provided to the intending parents (or the single intending parent) and the surrogate mother before approving a surrogacy agreement.

Consent Requirement

The AHRRA will only approve a surrogacy agreement if valid consent, called “section 87 consent,” has been given by the person undergoing the treatment and any relevant persons. Consent must be voluntary, given by someone with capacity, comply with the AHR counselling requirements, and can be revoked or replaced at any stage.

The consent form must confirm that the intending parents and surrogate mother have received the necessary AHR information, counselling, and legal advice, and that they understand the implications, including the potential access of the child to information about their origins.

If a donor is involved, the donor must acknowledge that they will not be the legal parent of any child born from their donation and that the child will have the right to access information about them and potentially contact them in the future.

Approval Requirements

A surrogacy agreement will be classified as a “permitted international surrogacy” only if it has been approved by the AHRRA before any assisted human reproduction (AHR) treatment takes place, and it meets specific requirements. These requirements include the surrogacy occurring in an approved jurisdiction, the surrogate mother and intending parents meeting certain criteria, and the agreement not being classified as commercial surrogacy.

Anyone knowingly providing services to further an unapproved surrogacy agreement or encouraging others to participate in such agreements will be acting unlawfully. However, this prohibition does not apply to legal advice or consular services provided by the State or medical treatment provided after pregnancy has commenced.

The AHRRA must formally approve any surrogacy agreement before the intending parents can participate. An application for approval must be submitted, including evidence that all relevant requirements have been met. If the AHRRA is inclined to refuse an application, it must notify the applicants, allowing them an opportunity to provide supplementary information before a final decision is made.

Approval for a surrogacy agreement will expire after two years unless a shorter period is specified to comply with age limits. If one of the intending parents dies before the embryo transfer, the approval is automatically revoked.

Intending Parents – International Surrogacy

A surrogacy agreement may be entered into either by two intending parents jointly or by a single intending parent. Any intending parent must be at least 21 years old before making the section 90 application.

Every surrogacy agreement must involve an embryo created using the gametes of at least one of the intending parents or, in the case of a single intending parent, their own gamete. It must also be demonstrated that at least one intending parent has a reasonable expectation of being able to parent the child until the child reaches 18 years of age.

If the intending parents include a male and a female, the surrogacy is considered valid if the female is unable to conceive, gestate, or safely deliver a child. In cases involving two female intending parents, both must be unable to conceive, gestate, or give birth. For two male intending parents, this provision does not apply.

In cases where there is a single intending parent, the same criteria regarding conception, gestation, or birth apply if the single parent is female. The intending parents or single intending parent must give an undertaking to ensure the welfare and protection of the child born from AHR treatment and commit to making a section 102 application for the parental order. The intending parent who provided a gamete must also submit evidence of reproductive cell testing before the embryo transfer is conducted.

A surrogacy agreement is considered commercial if any person receives or agrees to receive payment or reward for entering into or facilitating the agreement. This excludes legal advice fees or the surrogate mother’s reasonable expenses. It is prohibited to offer or receive any form of payment in return for surrogacy arrangements, except for reasonable expenses.

Surrogacy Agreements and Reasonable Expenses

The surrogate mother’s reasonable expenses are enforceable if agreed upon before the embryo transfer. These reasonable expenses may cover costs related to becoming pregnant, the pregnancy or birth, and carrying out the surrogacy agreement.

Specific expenses include medical expenses, travel and accommodation costs, and loss of income during pregnancy. Additional expenses such as legal advice, AHR counseling, and costs related to being involved in parental order proceedings are also included.

All expenses must be verifiable by receipts and subject to regulation by the Minister, who may consult with the AHRRA on further specifying reasonable expenses. A surrogacy agreement cannot be legally enforced except in relation to the reimbursement of reasonable expenses as outlined in section 94.

Advertisements  and Intermediaries

It is illegal to publish or disseminate advertisements or statements suggesting a willingness to enter into or arrange a surrogacy agreement or to act as a surrogate mother. This includes any material aimed at inducing someone to act as a surrogate mother.

Intermediary services may be used in international surrogacies as long as they comply with the laws of the jurisdiction where the surrogacy takes place. Fees paid to intermediaries must be reasonable and proportional, especially if legal, medical, or counseling services are involved.

Information to be Provided to and Recorded by AHRRA

Intending parents must ensure that the AHR treatment provider records details about the surrogate mother, intending parents, and any relevant donors. The surrogate mother must inform the provider about the outcome of the embryo transfer, including whether it results in pregnancy and childbirth.

The provider must then submit this information to the AHRRA at specified intervals. Intending parents are responsible for ensuring that any errors or omissions are corrected, and reasonable steps must be taken to ensure the surrogate mother complies with her reporting obligations.

A relevant donor is not considered the parent of a child born through AHR treatment using their donation. They have no parental rights or responsibilities for the child. Any references to parents in relation to a child born through such surrogacy agreements do not include the donor.

A child born through AHR treatment may only live with the intending parents if the surrogate mother provides written consent, unless the surrogate mother is deceased or cannot be located after reasonable efforts.

Parental Order – International Surrogacy

An application for a parental order can be made for a child born through AHR treatment in international surrogacy. The application must be accompanied by details of relevant fees and expenses. It must be made within six months of the child’s birth, although the court may extend this time in exceptional circumstances if it is in the child’s best interests.

The court may grant a parental order if the surrogacy agreement meets legal requirements, and the intending parents and surrogate mother consent to the order. The court must consider the best interests of the child, including their age, maturity, and physical, emotional, and psychological needs. Consent may be waived in cases where the parties cannot be located, are deceased, or lack capacity. The proceedings are held in private, and relevant authorities such as the Attorney General or AHRRA may be added as parties.

Once a parental order is granted, the child legally becomes the child of the intending parents, and the surrogate mother loses all parental rights. The court must notify the AHRRA and provide them with a copy of the order for entry in the National Surrogacy Register. If the child was born in the State, the court must also inform an tArd-Chláraitheoir for entry in the register of parental orders.

National Surrogacy Register

The AHRRA must record the details of children born through AHR treatment and surrogacy agreements in the National Surrogacy Register. The register will include information on whether a parental order was granted and must be updated if any errors or new information arise.

The AHRRA must notify an tArd-Chláraitheoir when a parental order is granted or refused for a child born in the State. This notification will ensure that the child’s birth record reflects that they were born through AHR treatment, and additional information can be accessed from the National Surrogacy Register once the child reaches adulthood.

Adults born as a result of AHR treatment under a surrogacy agreement or their parents/guardians can request information about the relevant donor from the National Surrogacy Register. Similarly, relevant donors can request information about the number and gender of persons born from their donation.

An adult born through surrogacy may request the names and contact details of their intending parents or surrogate mother. This information will be provided unless restricted under sections 112 and 113. Adults born through surrogacy using a relevant donation may request the donor’s name and contact details. The AHRRA must provide this information unless restricted by sections 112 and 113.

If the AHRRA finds an application incomplete or inaccurate, it can refuse to process the request. The AHRRA can also request additional information to ensure the correct processing of the application. These provisions apply to both forms and applications submitted to the AHRRA.

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