There are an increasing number of people in Ireland engaged in assisted reproduction services. However, it is of note that the Children and Family Relationships Act 2015 (“the 2015 Act”) only deals with donor assisted human reproduction and not any other form of assisted human reproduction. We still await a commencement date for the 2015 Act.
Recent Surrogacy Case
HOMS recently successfully acted for a couple whose child was conceived by means of an in-vitro fertilisation programme using the father’s sperm and an anonymous donor egg. This was pursuant to the provisions of a surrogacy agreement which was entered into in a foreign country. The child was born abroad. DNA testing established the father to be the biological father of the infant. The Irish Embassy abroad issued travel documents to allow the child to leave the foreign country and return to Ireland. In order to establish the identity of the child in Ireland and for the child to have Irish citizenship, it was necessary to bring an application before the Circuit Court seeking a declaration of parentage. In effect, the child required the identity of his father to be established under Irish law. As a declaration of parentage is only binding on the state where the Attorney General is made a party to the proceedings, then the Attorney General was joined as a notice party in order to ensure that the declaration of parentage was binding on the state.
Orders were also sought seeking custody and guardianship of the infant. The application was fully supported by the surrogate. It was also necessary to seek orders dispensing with the consent of the surrogate to the issuing of a passport for the child, now and in the future. These applications were all brought under the Guardianship of Infants Act 1964 and the Status of Children’s Act 1987. The application was successful.
Surrogacy and the Children and Family Relationships Act 2015
The Children and Family Relationships Act 2015 does not change the basic rule that the birth mother is the legal mother of a child. This was reaffirmed by the Supreme Court in the case of M.R. and D.R. & others v An t-Ard-Chlaraitheoir & others. In that case the Supreme Court ruled that the birth mother is the legal mother of the child. This is the rule in all cases including where the child is a donor-conceived child and the birth mother has no biological connection to the child.
The 2015 Act provides for determining the status of the “intending” second parent of a donor conceived child, as there is a legal presumption that the mother’s husband is the father of a donor-conceived child even if the husband has no biological connection to the child. This presumption can be rebutted and the 2015 Act aims to provide for civil partners and cohabitants to be a legal parent of the child. This person is known as the “intending parent”.
The parents of a donor conceived child will be the birth mother and her husband, civil partner or cohabitant provided the mother and the intending parent have given the necessary consents in advance. Otherwise the mother alone is the parent of the child. A donor is not a parent and has no parental rights or responsibilities in respect of the child.
Once the legislation is commenced, the intending parent will be regarded as a legal parent if certain criteria as laid down under the 2015 Act are met. There is also provision under the 2015 Act for retrospective recognition of parentage subject to conditions.
HOMS acted successfully in a foreign surrogacy case involving declarations of parentage in Ireland and issues including custody, guardianship and passport applications for the child.
Once commenced the Children and Family Relationships Act 2015 will deal with donor assisted human reproduction but not any other form of assisted human reproduction.