Pre-2024 Act Surrogacies
Past Domestic Cases
“Past domestic surrogacy” refers to a surrogacy agreement entered into before the relevant part of the 2024 Act commenced. For it to be domestic, the surrogate mother must have been habitually and lawfully resident in the State for at least one year (or a longer period if prescribed).
The intending parents, or in the case of a single parent, the intending parent, must also have been habitually and lawfully resident in the State for the same period before entering into the surrogacy agreement. The embryo transfer must have occurred either in the State or in another jurisdiction where it was legally authorised. The term “relevant child” is used to describe the child born under such an arrangement, and “section 204 application” refers to an application for a parental order in these circumstances.
Before the establishment day of the Assisted Human Reproduction Regulatory Authority (AHRRA), any references to the AHRRA in this Chapter refer to the Minister (Department). This allows the Minister to exercise some of the powers of the AHRRA.
Before the establishment day, the Minister will also maintain an interim register to make necessary entries that would otherwise be made in the National Surrogacy Register. Once the AHRRA is established, the Minister must transfer this interim register to the AHRRA, which will then integrate its contents into the National Surrogacy Register.
Application Parental Order Domestic
Intending parents or a single intending parent may apply to the High Court for a parental order in relation to a child born as a result of AHR treatment under a surrogacy agreement.
The application must include specific details about the surrogate mother and the intending parents, such as names, dates of birth, and contact information. Evidence must be provided showing that the surrogacy agreement qualifies as a past domestic surrogacy and that the embryo was created using a gamete from one or both intending parents, without using an egg from the surrogate mother.
The application must be submitted within three years of the commencement of this section or within six months of the child’s birth, whichever is later. However, the Court may extend this timeframe in exceptional circumstances if it is in the best interests of the child.
If there are any living siblings or half-siblings born from the same pregnancy, they must also be included in the application. Copies of the application must be served to both the AHRRA and the Attorney General.
Grant of Parental Order Domestic
The High Court may grant a parental order if it is satisfied that the evidence provided confirms the surrogacy agreement meets the necessary legal requirements and that the intending parents, surrogate mother, and child (if over 18 years old) consent to the order. The surrogate mother must confirm she understands that the child will have access to information about their origins, including the option to contact the parties to the surrogacy agreement.
The Court will consider whether granting the parental order is in the best interests of the child, taking into account the child’s age, maturity, needs, and relationship with the intending parents. If a party required to give consent is deceased, cannot be located, or lacks the capacity to give consent, the Court may waive that requirement.
The Court will also take the views of the child into account where applicable. Proceedings are held privately, and the Attorney General or the AHRRA may be added as parties to the proceedings.
Parental Order Effect Domestic
When the Court grants a parental order, the child legally becomes the child of the intending parents (or single intending parent) named in the order. This changes the legal status of the child, who will no longer be considered the child of any other person not named in the order.
The surrogate mother loses all parental rights and duties regarding the child. The parental order does not affect any prior legal orders made under the Status of Children Act 1987.
Once a parental order is granted, the Court must provide a copy of the order to both an tArd-Chláraitheoir (the registrar responsible for the register of births) and the AHRRA within 14 days, so that appropriate entries can be made in the relevant registers. If the Court refuses to grant a parental order, the Court must notify the AHRRA of this refusal to update the National Surrogacy Register.
National Surrogacy Register
The AHRRA is responsible for making an entry in the National Surrogacy Register for each relevant child as soon as possible after receiving the section 204 application. This entry will include details about the child, surrogate mother, and intending parents, as provided to the Court.
If a parental order has been granted, this will also be recorded, along with the date of the determination. Should the AHRRA become aware of updated or incorrect information, it must promptly correct the entry and notify an tArd-Chláraitheoir if necessary.
When a defined relevant event occurs, such as the granting or refusal of a parental order, the AHRRA must notify an tArd-Chláraitheoir. If a parental order is granted, the AHRRA will include a copy of the order, and the civil registrar will update the register of births to indicate that the child was born via AHR treatment under a surrogacy agreement. This additional information will be available from the National Surrogacy Register.
This note in the register of births can only be accessed by the child once they reach adulthood. When an adult requests their birth certificate, they will be informed that further information is available in the National Surrogacy Register.
Information for Adult (AHR)
An adult born as a result of AHR treatment under a surrogacy agreement may apply to the AHRRA to access information about their intending parents or surrogate mother. The adult (AHR) can request details such as the name, date of birth, and contact information of the relevant parties recorded in the National Surrogacy Register. The AHRRA will provide the requested information unless specific exceptions apply,
In the case of a child under 16, their parent or guardian, to apply to the AHRRA to update the information recorded about them in the National Surrogacy Register. The AHRRA is required to comply with this request unless restricted by the conditions
If the AHRRA finds that an application under this Chapter has not been completed correctly or accurately, it may refuse to process the application. The AHRRA must provide written notice to the applicant, outlining the reasons for the refusal. This provision also applies when the AHRRA is not satisfied with the identity of the applicant or other persons mentioned in the application.
The AHRRA may request additional information from an applicant if it deems such information necessary to determine the application or take any required action under this Chapter. The applicant must provide the additional information in the specified form.
Past International Surrogacy
“Past international surrogacy” describes a surrogacy agreement entered into before Section 216 came into effect. The surrogate mother must have been lawfully and habitually resident in the surrogacy jurisdiction for at least one year (or a longer period if prescribed) before entering the agreement. The intending parents, or a single intending parent, must have also been lawfully and habitually resident in the State for a similar duration before the agreement.
The embryo transfer must have occurred before the commencement and taken place in the jurisdiction where the surrogacy was conducted. The term “relevant child” refers to the child born under such arrangements. The “surrogacy jurisdiction” refers to a jurisdiction outside the State where the surrogacy was lawfully conducted and the embryo transfer took place.
Before the establishment of the AHRRA, any reference to the AHRRA are interpreted as a reference to the Minister. The Minister has the power to exercise the AHRRA’s functions, such as specifying document forms for use.
The Minister will maintain an interim register, where entries required will be recorded. Once the AHRRA is established, the Minister will transfer the interim register to the AHRRA, which will then integrate the entries into the National Surrogacy Register.
Parental Order Application – Past International
This section sets out the procedure for applying to the Court for a parental order concerning a child born from AHR treatment under a past international surrogacy agreement. The application, must include specific information about the surrogate mother and intending parents, such as names, dates of birth, and contact details.
Evidence must also be provided to confirm that the surrogacy agreement meets the definition of past international surrogacy, and that the embryo was created using a gamete from one or both intending parents (or the single parent), but not from the surrogate mother. The application must be made within three years of the commencement of the section or six months after the child’s birth, whichever is later.
The Court may extend this timeframe in exceptional circumstances if it is in the best interests of the child. Copies of the application must also be served to the AHRRA and the Attorney General.
Grant of Parental Order
The Court may grant a parental order if it is satisfied that the evidence submitted proves that the surrogacy agreement meets the legal requirements. The intending parents, surrogate mother, and relevant child (if over 18) must consent to the order.
The surrogate mother must confirm her understanding that the child may access information about their origins and may seek to contact the parties to the surrogacy agreement. The Court will consider the best interests of the child, including the child’s physical, psychological, and emotional needs, social and educational development, and relationships with the intending parents.
If any party required to give consent is deceased, cannot be located, or lacks capacity, the Court may waive the need for their consent. Proceedings are held privately, and relevant authorities, such as the Attorney General or AHRRA, may be added as parties to the proceedings.
Effect of Parental Order – Past International
When the Court grants a parental order, the child legally becomes the child of the intending parents (or single intending parent) named in the order. This changes the legal status of the child, who will no longer be considered the child of any other person not named in the order.
The surrogate mother loses all parental rights and duties regarding the child. The parental order does not affect any previous legal orders made under the Status of Children Act 1987.
Once the order is granted, the Court must provide a copy to the AHRRA within 14 days to allow the AHRRA to make the necessary entries in the National Surrogacy Register. If the child was born in the State and a waiver was granted, the order must also be sent to an tArd-Chláraitheoir for recording in the register of parental orders.
National Surrogacy Register
The AHRRA is responsible for making an entry in the National Surrogacy Register for each relevant child as soon as possible after receiving the application. The entry will include information about the child, surrogate mother, and intending parents, as well as whether or not a parental order was granted. If the AHRRA becomes aware of updated or incorrect information, it must promptly update or correct the entry and notify an tArd-Chláraitheoir if necessary.
When a relevant event occurs, such as the granting or refusal of a parental order, the AHRRA must notify an tArd-Chláraitheoir. If a parental order is granted, the AHRRA will include a copy of the order, and the civil registrar will update the register of births to indicate that the child was born via AHR treatment under a surrogacy agreement.
The note in the register of births can only be accessed by the child once they reach adulthood. When an adult requests their birth certificate, they will be informed that further information is available in the National Surrogacy Register.
An adult born as a result of AHR treatment under a surrogacy agreement may apply to the AHRRA to access information about their intending parents or surrogate mother. The adult can request details such as the name, date of birth, and contact information of the relevant parties recorded in the National Surrogacy Register. The AHRRA will provide the requested information unless specific exceptions apply.
In the case of a child under 16, their parent or guardian, to apply to the AHRRA to update the information recorded about them in the National Surrogacy Register. The AHRRA is required to comply with this request unless restricted by the conditions. If the AHRRA finds that an application under this Chapter has not been completed correctly or accurately, it may refuse to process the application. The AHRRA must provide written notice to the applicant, outlining the reasons for the refusal. This applies when the AHRRA is not satisfied with the identity of the applicant or other persons mentioned in the application.
The AHRRA may request additional information from an applicant if it deems such information necessary to determine the application or take any required action under tis Chapter. The applicant must provide the additional information in the specified form.
Irish Nationality and Citizenship Act 1956
The 2024 Act amends the Irish Nationality and Citizenship Act 1956 by including provisions related to children born through donor-assisted reproduction or surrogacy. The term “parent” will now include individuals recognized as parents under the Children and Family Relationships Act 2015.
A child will be granted Irish citizenship if one of the parents is an Irish citizen, and the parentage has been legally recognised through a parental order. These provisions apply to children born before or after the commencement of the provision.
Definitions of terms such as “intending parent” and “parental order” are provided in alignment with the 2015 and 2024 legislation.