parentage and citizenship
There is no specific law in Ireland governing surrogacy but it does not recognize a US birth certificate or US Parentage Order/Judgment; two different Irish Orders are required to establish parentage and guardianship over a child born via surrogacy.
The general rule of law is the birth mother is the mother of the child and, if she is married, her husband is presumed to be the father of the child. This is a rebuttable presumption.
Within 6 months of the birth of the child and upon returning to Ireland, the child should be registered with the local health clinic and proceedings for the first Order, an Order of Parentage, should be initiated by the genetic father. This involves an application made to the Circuit Court in Ireland, which, when issued, the genetic father is declared to be a parent of the child. The application must be accompanied by DNA evidence, confirming the biological connection between father and child. If there is no genetic link, then the applicant will not be recognized as a parent of the child under Irish law.
The application to the Court for the Order of Parentage also requires the following:
The State will be a notice party to the parentage application and will require certain procedures be followed when the DNA testing is completed.
The GC (and her husband, if she is married) will be named as respondents. The GC should be represented by separate Irish counsel.
Following the application for the Order of Parentage being made and the GC being served with the related documents, the GC (and her husband, if she is married) will need to provide a sworn affidavit, consenting to the following: the intended parent(s) being named on the US birth certificate, the child traveling out of the US to Ireland with the intended parents, DNA testing being completed, the genetic father submitting an application for the Order of Parentage, Irish Courts having jurisdiction to issue both the Order of Parentage and Order Guardianship, and to the Irish state issuing an Irish passport for the child without the GC’s consent until the child reaches the age of 18. In the affidavit, the GC will also renounce any right and obligations she might have under Irish law, in so far as that is possible under Irish law, to the child.
Once the first Parentage Order is entered, the genetic father will then make an application for a second Order from the Court, an Order of Guardianship, appointing him a guardian of the child. The Guardianship Order will be made if the Court is satisfied the genetic father is a suitable person to be a guardian. The best interest of the child is the test. As of September 2018, there are no reported cases where such an Order has not been granted in a surrogacy case.
Regarding an intended mothers who is also the biological mother of the child, Ireland will vigorously defend any application by the intended mother to be declared to be a parent of a child born through surrogacy even though she is genetic mother. Further, the relationship of the non-biological father to the child is not currently recognized in Ireland.
Section 49 of The Children and Family Relationships Act 2015, which came into operation in February 2016, provides the only ray of light for the other intended parent. Under this provision, and subject to certain conditions being met, a person, who is not a considered a parent, can make application to the Court to be appointed a Guardian of the child BUT NOT A PARENT OF THE CHILD.
In addition to the bio connection(s), parents must prove they are (i) from and living in the UK or (ii) domiciled in the UK. As of April 2017, Parentage Order applications are being processed within 6 months of submission.
Irish counsel for the parent(s) will require the following documentation for the Parentage and Guardianship Order proceedings:
Original signed Surrogacy Agreement
PDF of signed Egg Donation Agreement
Certified US Parentage Judgment/Order
Conformed Copy of IVF Physician's Affidavit filed in the US Parentage Judgment/Order proceedings
Conformed Copy of GC's Affidavit filed in the US Parentage Judgment/Order proceedings
Letter Confirming Legal Position in the state where the GC will deliver
**It is a criminal offense for an Irish citizen to adopt a child abroad. Any US judgment establishing parentage should be a pre-birth or post-birth judgment and not an adoption decree or make any reference to an adoption.
GC Matching Criteria / Complex Cases
UK counsel must advise before any match is approved for any clients falling in the following categories:
No biological connection(s)
The parent(s) is not currently living in the UK (they may or may not qualify for a UK parental order (this depends on whether they are ‘domiciled’ in the UK, which is complex and depends on their roots and future intentions; if they are not UK domiciled, they will need to secure British nationality via another route)
The parent(s) is living in the UK but they originate from elsewhere or are not British (they may or may not qualify for a UK parental order (this depends on whether they are ‘domiciled’ in the UK; if they are not UK domiciled they will need an alternative immigration plan and an alternative plan for securing parenting rights in the UK)
The parent(s) has other nationalities/connections with other countries (they may need advice in those countries if they want to secure nationality for their child there)
**A match involving an unmarried GC does simplify the process for establishing the child(ren)'s UK citizenship.
Birth Certificates
The US birth certificate may name both intended parents (or a single intended parent). Under Irish law, the birth mother is the mother no matter who is named on the birth certificate.
For clarification purposes, a US birth certificate listing a same-sex couple is acceptable.
Returning to ireland / Clearing Immigration
If possible, it is recommended the parent(s) return to the Ireland via [AIRPORT], as this airport/staff have experience with surrogacy-related births.
Parent(s) may use either the EU or non-EU immigration line.
Parent(s) should have the following documents with them when clearing immigration:
US Birth Certificate
US Parentage Judgment/Order
Surrogacy Agreement
Letter from Irish Counsel
preferred Counsel
Fiona Duffy
Patrick F O’Reilly & Co. Solicitors
9-10 South Great George’s Street
Dublin 2, Ireland
Office: +353 1 6793565
Fax: +353 1 6792812