Irish Citizenship Requirements For Children Born By Surrogate

22.02.2012

OFFICIAL GUIDELINES for establishing Irish citizenship for children born abroad to surrogate mothers, and for obtaining travel documents for such children, have been published.
Obtaining these rights will require the father establishing he is the genetic father of the child.
There is no provision for surrogacy in Irish law and this is the first time any official guidance has been issued to such parents.
It is estimated there are several hundred children living in Irish families who were born abroad to surrogate mothers but whose legal status under Irish law is uncertain.
Legislation was recommended in the Report from the Commission on Assisted Human Reproduction, published seven years ago, which has never been acted upon by government.
The guidelines, published by Minister for Justice Alan Shatter, state that, in establishing the parentage of a child, Irish law applies. Under Irish law the woman who gives birth to a child is its mother, whether or not the child is born from her egg. If she is married, her husband is the presumed father of the child; this presumption can be overturned if evidence is produced to the contrary.
If the mother is unmarried, she is the sole guardian of the child. If she is married, she and her husband are the child’s joint guardians.
The guidelines state that, under Irish law, family responsibilities cannot be subject to the law of contract and cannot be bought or sold. “The surrogate mother and the child will have a lifelong relationship with each other,” it says.
If the putative father is the genetic father of the child he can become recognised as its legal parent by applying to the Circuit Court for a declaration of parentage, which will normally require DNA evidence from an independent, reliable source. DNA evidence from a home kit or from any body linked to a surrogacy agency will not be acceptable.
Along with the declaration of parentage, the father must apply for guardianship of the child.
Only a parent or guardian can apply for a passport for a child, and a passport will generally be issued only where guardianship on the part of an Irish citizen has been established. In the meantime, the authorities may issue an emergency travel certificate to enable the child to enter the State.
This will require the consent of all the child’s guardians, including the surrogate mother and her husband, if she is married; and the adults bringing the child into the State must provide a written undertaking that they will notify their local health centre of the child’s presence in the State within two working days. The genetic father must provide an undertaking that he will seek declarations of parentage and guardianship from the Circuit Court within 10 days, or 20 in exceptional circumstances.
The surrogate mother’s consent must be full, free and informed; the application form must be translated into her own language if necessary; if she is illiterate, a lawyer must certify they have read it to her and she understands it.
The guidelines stress that people intending to make surrogacy arrangements for the birth of a child should obtain expert legal advice in Ireland before making any arrangements. They state that establishing whether an intended parent is a legal parent of a child, whether the child is an Irish citizen and whether the consent of the child’s guardians has been obtained will all take time and may involve more than one application to an Irish court.
It is clear from the guidelines there is no mechanism for a couple seeking to have a child born through surrogacy and using a sperm donor to establish their parentage and guardianship of the child. Legislation in this area is needed before guidelines can be drawn up.
Born abroad: Step-by-step to citizenship
Steps to make child born through foreign surrogacy an Irish citizen:
1 The putative father must have provided the sperm.
2 In advance of leaving Ireland, the couple must take legal advice and put in place the court applications needed to establish his parentage.
3 When the child is born, the surrogate mother must give her full, free and informed consent to seeking an Emergency Travel Certificate and/or a passport for him or her.
4 The putative father must obtain DNA evidence that he is the genetic father of the child to demonstrate the child may be an Irish citizen.
5 Medical advice on the standard medical tests for newborns should be obtained and such tests carried out in advance of travel.
6 The putative parents must provide a declaration that they will inform their local health centre of the child’s presence within two days of their arrival in Ireland.
7 The putative father must give a written undertaking that he will apply to the Circuit Court for declarations of parentage and guardianship. The Attorney General must be informed.
8 When declared the parent and guardian, the father may seek an Irish passport for the child.

irishtimes.com