Family Law – legal issues surrounding the increasing use of surrogacy arrangements in Northern Ireland.

Legal Issues Surrounding Surrogacy in Northern Ireland

Surrogacy is the process whereby a woman carries a child through pregnancy on the understanding that, at birth, the child and legal parental responsibility for that child will transfer to other individuals, who will then make the relevant applications to Court to become the legally recognised parents of the child.

It is increasingly common for couples who are perhaps experiencing fertility issues or for same sex couples who wish to have a genetic link to their child to enter into this type of arrangement.

There are two types of surrogacy;

Partial or traditional surrogacy whereby the surrogate donates her eggs, as well as carries the child.

Total or gestational surrogacy whereby the surrogate is not related to the child. She is known as a gestational parent. The embryo in this scenario can be created in a number of ways; through using the genetic mother’s egg and genetic father’s sperm; through using the genetic mother’s egg and a donor’s sperm; or through using a donor egg and the genetic father’s sperm.
When the child is born, the legal parent of the child is the surrogate mother. This is regardless of whether she is genetically related to the embryo or not. If the surrogate is married, her husband will be considered as the father of the child. This position will not change until altered by a Court.

For the intended parents to become the legal parents of the child and for the transfer of parental responsibility to them, an application for an adoption order or parental order must be made to the Court.

When a parental order is made, it extinguishes the rights of the surrogate and transfers parental responsibility to the applicant parents. This order does not expire and is life long. The birth of the child is re-registered in the names of the parents. A parental order can only be made if one or both parents are genetically related to the child. If neither of the intended parents are related to the child, then the intended parents must proceed by way of adoption.

When an application is brought to the Court for such an Order, the Court must be satisfied of the following;

• The child must have been carried by a surrogate and that conception was by way of embryo transfer or artificial insemination
• One or both of the parents of the child are the biological parents
• The intended parents must be married, civil partners or living as an established family unit
• The application must be made to the court within 6 months of the child being born and for the period prior to the application being made the child must have resided with the intended parents
• The intended parents must be resident in the UK and over the age of 18

When the application is made to the Court, the intended parents are the Applicants and the surrogate is named as the Respondent. The Surrogate and their husband must give consent to the making of the Order. It is common therefore that in anticipation of this being done all the parties will enter in to what is known as a ‘surrogacy agreement’ to confirm that this is the parties’ intentions once the child is born.