Surrogacy in Northern Ireland
Surrogacy is the process in which a woman agrees to carry a child through pregnancy with the understanding that, upon birth, the child and legal parental responsibilities will be transferred to other individuals. These intended parents should then undertake the relevant court application to become the child's legally recognised parents.
Surrogacy is often sought by individuals or couples who are unable to conceive a child on their own due to medical reasons (such as infertility) or same-sex couples who wish to have a biological child.
There are two main types of surrogacy; Full Surrogacy and Partial Surrogacy.
Full Surrogacy (also known as Host or Gestational)
The surrogate is not biologically related to the child since she does not use her own eggs for the pregnancy. This process entails the transfer of an embryo formed through either:
• the eggs and sperm of the intended parents;
• donated eggs fertilised with sperm from the male intended parent.
Partial surrogacy (also known as Straight or Traditional)
Partial surrogacy occurs when the surrogate uses her eggs to establish the pregnancy and therefore, she is genetically related to the child. It involves sperm from a male intended parent and fertilisation is usually accomplished by intrauterine insemination, however the surrogate can also undergo IVF, if necessary.
The law surrounding surrogacy in Northern Ireland is governed by the same legislation relied upon in England & Wales:
- The Human Fertilisation and Embryology Act 2008
- Surrogacy Arrangements Act 1985
The intended parents must seek an order from the family court, which terminates the legal parenthood of the surrogate (and her spouse or second legal parent, if applicable), and grants parental status to the intended parents through a Parental Order. Once a parental order is granted, the birth certificate can thereafter be reissued with the intended parents listed as the legal parents.
Without a Parental Order, the legal bond in this jurisdiction between the child born from a surrogacy arrangement and the intended parents would lack a solid legal foundation.
If neither of the intended parents are related to the child, (i.e., if the surrogate provides her own egg and donated sperm is used, or donor sperm and donor egg are used) the matter must proceed by way of adoption.
It is important to note that Northern Ireland applies its own rules as to who the legal parents of a child born through surrogacy are, irrespective of the law in the country of birth. This means that, regardless of where the child is born and what any non-UK birth certificate records, the law here will recognise the surrogate as the child’s legal mother at birth (and if she is married will treat her spouse as the other parent). Therefore, there will still be a necessity to apply for a parental order/adoption upon return to Northern Ireland as, until that order is granted, the surrogate mother is legally considered the child's parent.
When an application is brought before the court, the court must be satisfied of the following:
One or both of the intended parents of the child are the biological parents, and they must be married, in a civil partnership, or cohabiting.
The application for a parental order must be made within six months of the child’s birth.
At the time of the application and the granting of the order, the child must be living with the applicants.
That all parties including the surrogate have freely and fully consented to the order.
The surrogate mother’s consent is ineffective unless it is given six weeks after the child is born.
Save for reasonable expenses, no money or benefits must have been given or received in relation to the surrogacy arrangement.
The intended parents should be at least 18 years old at the time of the making of the order.
If you are contemplating undergoing the surrogacy process, it is pertinent to seek legal advice and here at Caldwell & Robinson Solicitors, we can help you manage the legal process confidently and securely.
This advice is written by Joanna Burns, Family & Child Law Solicitor.
If you would like to contact Joanna, please click here.