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Domestic Surrogacy

Health (Assisted Human Reproduction) Act 2024

The 2024 Act sets out the circumstances under which surrogacy may be permitted in Ireland. There is a framework for the Assisted Human Reproduction Regulatory Authority AHRRA to provide pre- authorisation of a surrogacy agreement.

The requirements a woman must meet in order for her to act as a surrogate in Ireland, include that she is at least 25, has previously given birth to a child, has not acted as a surrogate mother more than once previously, and has been assessed as suitable by a counsellor and a registered medical practitioner.

There are requirements intending parents must meet in order for a surrogacy agreement to be approved, including that they are at least 21, that they are unable to gestate, conceive or give birth to a child safely, that at least one intending parent has a genetic link to any child born, and that at least one intending parent has a reasonable expectation of living to parent any child until adulthood.

Permitted Domestic Surrogacy

“Domestic surrogacy” means a surrogacy agreement in the specified form entered into by a surrogate mother who has been habitually and lawfully resident in the State for not less than two years, and either or both intending parents, not less than one of whom has been habitually and lawfully resident in the State for not less than two years,

Permitted surrogacy

The surrogacy the subject of a surrogacy agreement is a permitted surrogacy only where the surrogacy is a domestic surrogacy that has been approved by the AHRRA before any AHR treatment has been provided pursuant to the agreement and the surrogacy complies with all of the following:

  • the surrogate mother meets the requirements below;
  • the intending parents together as a couple meet (or, in the case of a single intending parent, that intending parent meets) the requirements specified ;
  • it is not a commercial surrogacy agreement –
  • the personal details of the intending parents (or, in the case of a single intending parent, the personal details of that intending parent), the surrogate mother, the relevant donor (gametes) (if any) and any child born as a result of AHR treatment provided pursuant to the surrogacy agreement are recorded in accordance with the Act.

A person shall not knowingly provide a technical, professional or medical service that is to give effect or further effect to any agreement or other arrangement which purports to relate to a permitted surrogacy, but does not in fact relate to a permitted surrogacy.

This does not  prohibit

  • a legal practitioner from giving legal advice in relation to any agreement or other arrangement
  • a person from providing medical treatment to a woman after she is pregnant if the person is, at the time of providing such treatment, lawfully entitled to provide the treatment in the State.

Approval of Surrogacy Agreements

A person shall not participate in a surrogacy agreement other than a surrogacy agreement that has been approved pursuant to an application to  the AHRRA for the AHRRA’s approval of the completed surrogacy agreement attached to the application.

The agreement has been signed by the surrogate mother, and the intending parents (or, in the case of a single intending parent, that intending parent),

The approval of a surrogacy agreement shall expire when the period of two years has elapsed from the date of such approval or a  a shorter period than the two years where that is necessary in order to ensure that a specified upper age limit is complied with.

Where the AHRRA is minded to determine application by refusing to approve the surrogacy agreement attached to the application, it shall, in the interests of procedural fairness, give a notice in writing to the applicant stating—

  • that the AHRRA is so minded and stating the reasons why the AHRRA is so minded, and
  • that the applicant may, if the applicant wishes to do so, within the period specified in the notice (being a period reasonable in all the circumstances of the case) provide, in view of those reasons only, supplementary material in the specified form to the AHRRA for the AHRRA’s further consideration before making a determination following the expiration of that period.

Should a surrogacy agreement be approved under this section but an intending parent dies before the embryo transfer concerned has been effected, such approval shall be treated as revoked from and including the date of death, and the other provisions of this Act shall be construed accordingly.

Where a child is born as a result of AHR treatment provided pursuant to a surrogacy agreement, the child may reside with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) only if the surrogate mother consents in the specified form thereto.

Safety of children – AHRRA

The AHRRA shall not approve a surrogacy agreement unless it is satisfied, based on the information available to the AHRRA, that the relevant person, and each other relevant person, does not present a potential significant risk of harm or neglect to  any child that may be born as a result of the AHR

Where the AHRRA is not satisfied after having assessed the returns concerned it shall, as soon as is practicable after the expiration of the period concerned by notice in the specified form given to each relevant person, state the reasons why the provider is not so satisfied.

Surrogate Mothers

A woman may act as a surrogate mother pursuant to a surrogacy agreement only if—

  • she has previously given birth to a child before entering into the agreement,
  • she has attained the age of 25 years before entering into the agreement,
  • the section 18 report concerned states that she is suitable to act as a surrogate mother, and
  • she has been assessed and approved as suitable to act as a surrogate mother by an appropriate medical specialist.

A surrogacy agreement is not a permitted surrogacy if the surrogate mother has, before entering into such agreement, been a surrogate mother upon more than one occasion, and where on at least two such occasions a clinical pregnancy was achieved.

Intending Parents

A surrogacy agreement may be entered into by  two intending parents jointly, or    a single intending parent. Any intending parent shall have attained the age of 21 years before the application concerned is made.

Every surrogacy agreement shall—

  • involve an embryo which was or will be created using the gametes of either or both of the intending parents (or, in tIhe case of a single intending parent, the gamete of that intending parent),
  • require that at least one of the intending parents (or, in the case of a single intending parent, that intending parent) has objectively, and in all the circumstances of the case, a reasonable expectation of living to parent a child born as a result of AHR treatment provided pursuant to the agreement until that child has attained the age of 18 years, and

In the case of a male and a female as the intending parents—

  • the female is unable to conceive a child, including as a result of the provision (including the potential provision) of AHR treatment,
  • the female is unable to gestate a pregnancy to birth,
  • the female is unlikely to survive a pregnancy or giving birth, or
  • the female is likely to have her health significantly adversely affected by a pregnancy or giving birth;

In the case of two females as the intending parents, each of them—

  • is unable to conceive a child, including as a result of the provision (including the potential provision) of AHR treatment,
  • is unable to gestate a pregnancy to birth,
  • is unlikely to survive a pregnancy or giving birth, or
  • is likely to have her health significantly adversely affected by a pregnancy or giving birth;

in the case of a single intending parent, the intending parent is a male or, if a female, she—

  • is unable to conceive a child, including as a result of the provision (including the potential provision) of AHR treatment,
  • is unable to gestate a pregnancy to birth,
  • is unlikely to survive a pregnancy or giving birth, or
  • is likely to have her health significantly adversely affected by a pregnancy or giving birth.

Or  the intending parents are both males;

Undertaking of Parents

The intending parents (or, in the case of a single intending parent, that intending parent) shall give an undertaking in the specified form, before the application concerned is made, that he or she shall—

  • take all necessary steps to provide care and protection, prevent harm or neglect to, and ensure the welfare of, any child born as a result of AHR treatment provided pursuant to the surrogacy agreement, and
  • make a application in respect of any child born as a result of AHR treatment provided pursuant to the surrogacy agreement.

The AHR treatment provider shall ensure that an intending parent who provided a gamete used to create the embryo to be transferred pursuant to the surrogacy agreement has undergone the testing required for donors of reproductive cells under Regulation 11 of the Regulations of 2006 before the embryo transfer is undertaken.

Where the results of the testing  undergone by the intending parent are that the gamete concerned does not meet the standards of quality and safety set by the Regulations of 2006, the AHR treatment provider shall, as soon as is practicable after obtaining those results, give such parent a notice in the specified form refusing to accept the gamete for use in AHR treatment.

Prohibition of Commercial Surrogacy

A surrogacy agreement is a commercial surrogacy agreement if any person—

  • receives or agrees to receive any payment or other reward in consideration of entering into or giving effect to the agreement,
  • offers, makes or gives, or agrees to offer, make or give, any payment or other reward in consideration of entering into or giving effect to the agreement, or
  • receives, makes or gives, or agrees to receive, make or give, any payment or other reward in consideration of facilitating the entering into or giving effect to the agreement.

An obligation under a surrogacy agreement to pay or reimburse the surrogate mother’s reasonable expenses is enforceable if the agreement was made before the transfer of the embryo to the surrogate mother. The reasonable expenses are the surrogate mother’s reasonable expenses associated with any of the following matters that are part of the surrogacy agreement:

  • becoming or trying to become pregnant;
  • pregnancy or birth;
  • entering into and giving effect to the agreement.

It includes the following:

  • any pre-natal or post-natal medical expenses associated with the pregnancy or birth;
  • any travel or accommodation expenses associated with the pregnancy or birth;
  • the expense of reimbursing the surrogate mother for any net loss of income entailed in being the surrogate mother but only for the following periods: a period of not more than 6 months during which the birth happened or was expected to happen;               any other period during the pregnancy or thereafter, not exceeding 12 months in total, when the surrogate mother was unable to work on medical grounds related to pregnancy or birth.

The reasonable expenses associated with entering into and giving effect to a surrogacy agreement include the following:

  • the expenses associated with the surrogate mother receiving AHR counselling in relation to the agreement (whether before or after she entered into the agreement);
  • the expenses associated with the surrogate mother receiving independent legal advice in relation to the agreement or a parental order related to the agreement;
  • the expenses, including the reasonable travel and accommodation expenses, associated with the surrogate mother being a party to proceedings in relation to making a parental order related to the agreement.

Where the Minister prescribes matters as  reasonable expenses that may be incurred by the surrogate mother in relation to any one or more than one of the following:

  • maternity clothing;
  • paid housework or childcare undertaken by persons other than the surrogate mother and her spouse, civil partner or cohabitant (if any);
  • pregnancy aids that assist in the comfort and well-being of the surrogate mother;
  • any other expenses typically incurred in the course of a pregnancy.

An expense is reasonable only if the expense is actually incurred, and the amount of the expense can be verified by receipts or other documentation.

Non-enforceability of surrogacy agreements, etc.

A surrogacy agreement shall not be enforceable by or against any person otherwise than as provided above. A surrogate mother has, in relation to her pregnancy, the same rights as a woman, not being a surrogate mother, has in relation to her pregnancy, including—

  • the right to manage all aspects of her health during the pregnancy and, in that regard, to freely seek and obtain medical services in relation to the pregnancy, and
  • the right to privacy and confidentiality in relation to her medical treatment during the course of the pregnancy.

A person shall not publish, or cause to be published, any advertisement, statement, notice or other material that—

  • states or implies that a person is or may be willing to enter into or arrange a surrogacy agreement,
  • seeks a person willing to act as a surrogate mother,
  • states or implies that a person is or may be willing to act as a surrogate mother, or
  • is intending or is likely to induce a person to act as a surrogate mother.

Legal advice & Information

The surrogate mother and the intending parents (or, in the case of a single intending parent, that intending parent) involved shall have received independent legal advice from a legal practitioner and information about the legal implications of the surrogacy agreement before consent concerned is given.

The AHR treatment provider shall, for each embryo transfer undertaken by the provider pursuant to the surrogacy agreement, acquire and retain a record of the following:           in the case of the surrogate mother—

  • her name,
  • her date and place of birth,
  • her nationality, and
  • her address and contact details;

in the case of each intending parent—

  • his or her name,
  • his or her date of birth,
  • whether or not he or she provided a gamete used under the agreement, and
  • his or her address and contact details;

in the case of the relevant donor (gametes) (if any)—

  • his or her name,
  • his or her date and place of birth,
  • his or her nationality,
  • the date on which, and the AHR treatment facility or other like facility, as appropriate, at which he or she made his or her relevant donation (gametes), and
  • his or her contact details;

The date on which, and the AHR treatment facility at which, the embryo transfer was undertaken;

Notification Obligations

Where an AHR treatment has been provided pursuant to a surrogacy agreement by an AHR treatment provider, the surrogate mother shall, as soon as is practicable after becoming aware of the fact, inform the provider of the following:

  • whether the embryo transfer resulted in a pregnancy;
  • where the embryo transfer has resulted in pregnancy, the date on which the surrogate mother is expected to give birth;
  • where paragraph (b) applies, after the pregnancy of the surrogate mother has come to an end—    whether the pregnancy resulted in the birth of a live child, and )      where the pregnancy resulted in the birth of a live child, the name, date, place of birth, sex and address of the child.

The AHR treatment provider shall, for each embryo transfer undertaken by the provider pursuant to a surrogacy agreement, give notice in writing in the specified form to the AHRRA of the following:

  • that an embryo transfer pursuant to a surrogacy agreement has been undertaken at the AHR treatment facility;
  • the information the provider has recorded

The AHR treatment provider shall give to the AHRRA the information required in relation to each embryo transfer undertaken pursuant to a surrogacy agreement at the AHR treatment facility on each of the following dates:

  • on a date that is not later than six months after the provision of the embryo transfer concerned;
  • on a date that is not earlier than 12 months and not later than 13 months after the undertaking of the embryo transfer concerned.

Donor  (gametes)

Where a relevant donation (gametes) is used to create the embryo transferred pursuant to a surrogacy agreement, the relevant donor (gametes)—

  • is not the parent of a child born as a result of AHR treatment provided pursuant to such use of such donation, and
  • has no parental rights or duties in respect of the child.

On and after the commencement of this section, a reference in any enactment to a mother, father or parent of a child who was born as a result of AHR treatment provided pursuant to a surrogacy agreement under which the embryo transferred was created using a relevant donation (gametes) shall be construed as not including the relevant donor (gametes).

Where an embryo proposed to be transferred pursuant to a surrogacy agreement was or will be created using a relevant donation (gametes), the transfer shall not be effected unless consent of the relevant donor (gametes) permits the use of such donation pursuant to such an agreement.

Application for Parental Order

An  application may be made to the court for a parental order in respect of a child who was born as a result of AHR treatment provided pursuant to a permitted surrogacy.   The following shall be parties to an application:

  • the intending parents (or, in the case of a single intending parent, that intending parent);
  • the surrogate mother;
  • the child who was born as a result of AHR treatment provided pursuant to the permitted surrogacy.

An  application shall be accompanied by evidence that—

  • the embryo from which the child the subject of the application was born—was created using a gamete from not less than one of the intending parents of that child (or, in the case of a single intending parent of that child, was created using a gamete from that intending parent), and was not created using an egg from the surrogate mother, and
  • the child resides with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application.

An application shall be made not earlier than 28 days, and not later than six months, after the day on which the child was born. The court may extend the time if it is satisfied that            there are exceptional circumstances justifying the extension, and   it is in the best interests of the child to do so.

An application in respect of a child shall only be made if any living sibling who was born as a result of the same pregnancy the subject of the surrogacy agreement concerned is also the subject of the application. The AHRRA and the Attorney General shall be served with a copy of the section 65 application.

Grant of Parental Order

The court may grant an order pursuant to an application if it is satisfied that—

  • the surrogacy meets all of the requirements specified,
  • the intending parents (or, in the case of a single intending parent, that intending parent) named in the application consent to the granting of the order,
  • the surrogate mother consents to the granting of the order,
  • at the time of the hearing of the application, the child continues to reside with the intending parents or one of them (or, in the case of a single intending parent, that intending parent) named on the application, and
  • the granting of the order is in the best interests of the child.

The court may waive a requirement for consent from an intending parent, in the case of two intending parents, if he or she—

  • is deceased,
  • cannot be located after reasonable efforts have been made to find him or her, or
  • lacks the capacity to make a decision in that regard.

The court may waive a requirement for consent from the surrogate mother if she—

  • is deceased,
  • cannot be located after reasonable efforts have been made to find her, or
  • lacks the capacity to make a decision in that regard.

Best Interests

In determining, what is in the best interests of the child, the court shall have regard to all the circumstances that it considers relevant to the child who is the subject of the section 65 application concerned, including—

  • the child’s age and maturity,
  • the physical, psychological and emotional needs of the child,
  • the likely effect of the granting of the parental order on the child,
  • the child’s social, intellectual and educational needs,
  • the child’s upbringing and care,
  • the child’s relationship with his or her intending parents (or, in the case of a single intending parent, that intending parent), and
  • any other particular circumstances pertaining to the child.

The court shall, in relation to its consideration of an application and in so far as is practicable, in respect of any child who is capable of forming his or her own views, ascertain those views and give them due weight having regard to the age and maturity of the child.

Proceedings  shall be heard otherwise than in public.

The court may join the Attorney General or the AHRRA.

Effect of Parental Order

Where the court grants a parental order in respect of a child—

  • the child becomes the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,
  • subject to paragraph (e), the child is no longer the child of any person other than a person named as a parent in the order,
  • the child will be considered, with regard to the rights and duties of parents and children in relation to each other, as the child of the intending parents (or, in the case of a single intending parent, that intending parent) named in the order,join
  • the surrogate mother of the child will lose all parental rights and is freed from all parental duties in respect of the child, and
  • the order does not affect any order previously made under section 35 of the Status of Children Act 1987 in respect of an intending parent of the child.

Where the court grants a parental order in respect of a child, it shall, within 14 days immediately following such grant, give, or cause to be given, a copy of the order to an tArd-Chláraitheoir and the AHRRA in order to allow—

  • an tArd-Chláraitheoir to make, or cause to be made, an entry, in the register of parental orders for surrogacy established and maintained under the Act of 2004,
  • the AHRRA to make an entry in the National Surrogacy Register

 

National Surrogacy Register

The 2024 Act provides for the establishment and maintenance by the AHRRA of the National Surrogacy Register, which will contain the details of each party to a surrogacy agreement and any child born under the agreement. It outlines how the National Surrogacy Register, or the Circuit Court, as the case may be, will interact with the register of births.

A person whose name is on the National Surrogacy Register may update his or her information. The AHRRA can refuse to comply with an application which has not been correctly completed, including if it is not satisfied as to the identity of the applicant or another person named in the application.

AHRRA may seek additional information in respect of an application which it considers is necessary to allow it to make a decision on the application.     AHR treatment for a surrogacy agreement shall not be provided unless all relevant provisions of the Part have been complied with.

The lower minimum age at which children can access information on their genetic origins as provided in the Act will not apply to information recorded on the National Donor-Conceived Register before the commencement of the relevant section of the Act.

Access to Information

The 2024 Act sets out the non-identifiable information that a person born as a result of a surrogacy agreement can access in respect of a donor who provided gametes used in his or her conception and also in respect of other persons who had a common donor. It also provides for the donor involved, or donor-conceived persons who had a common donor, accessing certain information in respect of a person born as a result of a surrogacy agreement. It outlines

  • the information that can be provided to a person born as a result of a surrogacy agreement in respect of that person’s surrogate or his or her intending parent(s), where applicable.
  • the information in respect of the donor that can be provided to a person born as a result of a surrogacy agreement in which the embryo transferred was created using donor gametes.
  • in respect of instances where a person who acted as a donor in the context of a surrogacy agreement may also have separately acted as a donor in the context of a DAHR procedure under the CFR Act 2015, the information which can be provided from, or recorded on, the National Surrogacy Register and the National Donor-Conceived Person Register.

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