Maureen O'Sullivan (Dublin Central, Independent)
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Question 97: To ask the Tánaiste and Minister for Foreign Affairs and Trade his position on the issue of surrogacy as it pertains to children born abroad but parented in Ireland; the reason children born by surrogacy abroad are refused Irish passports; the reasons for such refusals; the reason a declaration of parentage is needed for passport applications for such children when a child born outside Ireland to an Irish citizen does not need such requirements; and if he will make a statement on the matter. [5225/12]

Eamon Gilmore (Dún Laoghaire, Labour)
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The legal situation of children born through surrogacy arrangements is a very complex area in Irish law. Whereas there is no specific legislation in Ireland relating to surrogacy, a range of Irish laws relating to the areas of citizenship, guardianship, consent for the child to travel and other parental rights must be comprehensively addressed by applicants before any travel document may issue. The Department of Foreign Affairs and Trade has responsibility for the issuance of passports, but it may only do so when the above issues, which largely relate to areas of law within the competence of other Departments, such as the Department of Justice and Equality, have been resolved. When issuing passports, the Passport Service is obliged to respect the law as it stands. In determining whether a child born outside the State is an Irish citizen, it is necessary first of all to establish whether the child was born to an Irish parent. Furthermore, in general, only a parent or guardian may apply for a travel document on behalf of an Irish citizen child. Thus the questions of who are the legal parents of the child, and who are the legal guardians of the child must be examined in order to determine whether a child born outside the State is an Irish citizen, and whether consequently an Irish travel document may be issued to the child.

In considering these questions it is important to be aware that the fact that a genetic relationship exists between a commissioning adult and the child does not mean that he or she is automatically the legal parent of the child under Irish law.

Under Irish law the woman who gives birth to the child - the surrogate mother - is the legal mother of the child, even if the ovum from which the child was produced was provided by one of the commissioning adults, or by a donor. Under the Guardianship of Infants Act 1964, the mother of a child born outside marriage is the child's sole guardian. Under Irish law, family relationships and the rights and responsibilities that flow from them cannot be subjected to the ordinary law of contract and cannot, in particular, be transferred to another person, bought, or sold. This means that, under Irish law, the surrogate mother and the child will have a life-long legal relationship with one another.

If the surrogate mother is married, then under section 46 of the Status of Children Act 1987, the surrogate mother's husband is presumed by law to be the father of the child, unless the contrary is proved on balance of probabilities. The husband will also, along with the surrogate mother, be the joint guardian of the child. If the commissioning father is the genetic father of the child, it is possible to overcome the presumption of paternity in favour of the surrogate mother's husband, so as to allow the commissioning father to be recognised as the legal parent of the child. However, this requires an application for a declaration of parentage to be made to the Circuit Court under Part VI of the Status of Children Act 1987.

If the surrogate mother is not married, and the commissioning father is the genetic father of the child, then the Irish authorities may recognise his paternity of the child on receipt of reliable DNA evidence. However, because the commissioning father is not married to the surrogate mother, he is not automatically a guardian of the child under Irish law, even if he has been granted a declaration of parentage. The Department therefore recommends that legal advice should be sought about the appropriate mechanism for arranging for the commissioning father to be made a guardian of the child.

In addition to the issue of passports, it is very much in the best interest of any newly born infant arriving into the State that they are accompanied by an adult with whom they have a legally recognised relationship and who has legal authority to make decisions, including medical decisions, on their behalf. The Irish authorities will therefore, in the best interests of child, seek undertakings from commissioning adults that they notify their local health centre of the child's arrival in the State and encourage them to seek a court order establishing the commissioning father's legal relationship with the child, thereby allowing him to make decisions, including medical decisions, on behalf of the child.

I understand that the preparation of guidelines by the Department of Justice and Equality in this area is at an advanced stage and I would expect that they will be published over the coming months.