International surrogacy guidelines in Ireland: improvement or just a headline?

The Irish Minister for Justice, Equality and Defence has recently issued guidelines for Irish intended parents who enter into surrogacy arrangements abroad. Whilst any attempt to streamline the complex legal issues and problems associated with international surrogacy is to be welcomed, these guidelines are a far cry from a much needed root and branch overhaul of the fundamental legal treatment of international surrogacy arrangements in Ireland and the introduction of formal surrogacy legislation.

The new guidelines coincide with recent media coverage of an increasing number of foreign born surrogate babies left stranded abroad in circumstances where their Irish intended parents have no clear means of securing their safe passage home to Ireland after the birth.  Whilst the guidelines do create a clearer pathway for Irish citizenship or emergency travel clearance  to be granted to the surrogate born child if the intended father is an Irish citizen and biological father, this can still take many weeks or months to secure in circumstances where a DNA test and a raft of other paperwork and/or an Irish court order is also required.

The Irish surrogacy guidelines make no change to the legal position of the Irish intended mother who lacks legal status for the surrogate born child at birth. Irish law continues to regard the surrogate mother as the child’s legal mother by virtue of carrying the pregnancy and if married her husband as legal father  (a position which is mirrored under English law).

Overall, the Irish surrogacy guidelines signify a need for greater legal certainty of the complex legal issues that surrogacy and assisted reproduction create.  The guidelines mark a step forward but fall short of radical reform. The lack of a uniform approach to surrogacy law and practice around the world continues to create complex international conflicts of law and very real difficulties for intended parents and their surrogate born children alike. There needs to be rational international debate and consensus at its widest level about the nature and practice of surrogacy, payments, issues of enforceability and the associated international movement of children.

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