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Will Surrogacy law change in Northern Ireland?

Today, Surrogacy has thankfully become increasingly more common and a more obtainable option for individuals & couples. Surrogacy can sometimes be the only available option left for couples or individuals who are unable to conceive or carry a pregnancy to full term, but would like to have their own child.

There are a multitude of reasons why Surrogacy is opted for;

  • Medical reasons: That make it dangerous or impossible to conceive naturally, including recurrent pregnancy loss, absence or malformation of the womb, or repeated IVF implantation failures
  • Health or Genetic Conditions: Individuals with a genetic defect, health condition or life-threatening illness which they don’t want to risk passing onto their child via direct pregnancy
  • Same-sex couples: Wishing to have their own family
  • Individuals: Who would like to parent but perhaps don’t have or want a partner involved

What are the latest legal developments around Surrogacy in the UK?

Currently, those who have a baby via surrogacy must wait six weeks or longer to be registered as the child’s legal parents, which can lead to problems and complications, especially if the baby needs medical care.

In a bid to change this, England, Wales and Scotland have proposed a new law which would change the legal status of intended parents at birth. Some of the proposed changes include granting automatic parental responsibility to intended parents who are genetically related to the child and have entered a surrogacy arrangement before conception. The review also proposes simplifying the process of obtaining a parental order and removing the requirement for intended parents to be genetically related to the child.

Overall, the proposed changes aim to modernise surrogacy’s legal framework and provide greater legal certainty and equality for intended parents, surrogates, and children born through surrogacy. This is a significant step forward.

However, in Northern Ireland, these changes have yet to be proposed.

This Q&A feature guided by Family Law Director Ciara Barlow, who explains the current legal requirements around surrogacy in Northern Ireland and outlines her advice to future parents looking to take this route, to know what to expect and ensure a smoother legal process.

What are the current surrogacy laws in Northern Ireland?

Surrogacy can be a complex and emotionally charged process involving a range of legal, medical, and social issues that need to be carefully considered and addressed.

Surrogacy is legal in this jurisdiction, however any arrangements or contracts the Parties enter into are not enforceable which leave Parties vulnerable in an already emotionally charged situation where people are longing for a child.

In Northern Ireland, surrogacy is not yet fully regulated, which has created several challenges and uncertainties for people interested in pursuing surrogacy as a means of building a family. As a result, there have been calls for new legislation to establish a clear legal framework for surrogacy and provide protection for all parties involved.

Is this due to change?

The Department of Health in Northern Ireland launched a public consultation on surrogacy in April 2021, seeking input from stakeholders and the public on various surrogacy-related issues. The consultation aimed to gather views on topics such as the eligibility criteria for intended parents, the rights and responsibilities of surrogates, legal parentage and citizenship for children born through surrogacy, and the recognition of surrogacy agreements.

The consultation closed in June 2021, and the Department of Health is currently reviewing the responses received. A draft surrogacy law is expected to be published for further public consultation in due course. Once new legislation is in place, greater clarity and certainty around surrogacy will be available, as will more safeguarding in the interests of all involved.

Without specific surrogacy legislation, surrogacy arrangements in Northern Ireland are not legally enforceable. Intended parents, surrogates, and children born through surrogacy may face legal uncertainties and risks, particularly around parental rights and responsibilities, immigration, and citizenship. For this reason alone, there must be trust and understanding between all parties involved in the arrangement. Legal advice and support from a professional are essential to navigate complex issues and any problems that may arise. 

What is a Surrogacy Agreement & do I need one in Northern Ireland?

A Surrogacy Agreement is a legal contract between the intended parents and a surrogate that sets out the terms of the surrogacy arrangement. It typically covers issues such as the surrogate’s compensation, medical expenses, the intended parents’ responsibilities during pregnancy, and their legal parentage after the child’s birth.

A surrogacy agreement is not legally enforceable in Northern Ireland as no specific surrogacy legislation exists. However, it is still recommended that intended parents and surrogates enter into a written agreement to help establish clear expectations and understandings between all parties involved in the surrogacy process.

While a surrogacy agreement cannot guarantee the intended parents’ legal parentage, it can provide evidence of intentions and understanding from everyone when the surrogacy arrangement was made. It can also help prevent disputes and misunderstandings during or after the surrogacy process.

Working with a lawyer can help you understand what you should consider in your surrogacy agreement and can advise on any potential legal risks or issues that may arise.

If I have a baby via a surrogate, who will be the legal parent?

The surrogate is on the birth certificate until a Parental Order and a new birth certificate are issued. Whether one of the intended parents can be named will depend on whether the surrogate is married or in a civil partnership and the circumstances surrounding insemination.

Once a baby is born, the legal parent is the surrogate, and this remains the position until a court makes a Parental Order. Unfortunately, depending on the circumstances for some couples, they must wait several months – even up to a year to be the registered parent of their child. This can cause problems because the person on the birth certificate legally has the right to decide on issues such as medical treatment.

How long does the transfer process take?

The transfer process in surrogacy can be lengthy due to the legal requirements involved. In Northern Ireland, all Parental Order applications must be filed with the High Court in Belfast. The court will appoint a Guardian ad Litem to represent the baby and assess their well-being and health. The guardian will meet with the intended parents and report back to the court. They will make an order only after the court is satisfied with the baby’s well-being and health. The entire process, including the guardian’s assessment and the court hearing, could take several months to complete.

Are laws on surrogacy changing in Northern Ireland?

The current laws on surrogacy in Northern Ireland are outdated and are undergoing change. Presently they do not adequately protect the rights of all parties involved in the surrogacy process, including the surrogate mother and the intended parents. As a result, the Northern Ireland Assembly passed the Child Arrangements Bill in March 2021, which aims to update and modernise the law on surrogacy.

The new bill proposes to establish legal parenthood for the intended parents of a child born through surrogacy, as well as provide greater protection for the surrogate mother and the child. It also sets out specific criteria for surrogacy arrangements, including the requirement for the intended parents to be over 18 years of age, to have a genetic connection to the child, and to undergo counselling before entering into a surrogacy arrangement.

The bill has been welcomed by many as a step forward in recognising the rights of all parties involved in surrogacy, but it still needs to go through additional legislative stages before it becomes law.

Last year in Northern Ireland, a historic first occurred in the changing legal landscape of surrogacy with the birth of a baby to a same-sex couple via a surrogate mother. 

This event signifies an essential milestone for same-sex couples in Northern Ireland who have previously encountered legal and social obstacles in starting a family. The couple expressed their joy and gratitude at the birth of their child and hope that it will encourage other same-sex couples to explore surrogacy as a viable option for starting their own family.

Should I seek legal advice when considering surrogacy in Northern Ireland?

If you are thinking of entering into a Surrogacy Agreement, it’s critical that you seek legal advice.

Director Ciara Barlow and our wider Family Law team specialise in Surrogacy, Adoption and all aspects of Private Client & Child Law.

As the legal landscape for surrogacy in Northern Ireland evolves, couples and individuals need a qualified surrogacy lawyer who can help you navigate the legal and practical aspects of surrogacy, ensuring that all parties involved are protected.

Get in Touch

Our expert team can help you with;

  • any legal issues that may arise during the surrogacy process
  • the surrogacy agreement with the surrogate 
  • the parental order process and how to apply
  • the documentation and forms you need to prepare
  • personal or financial information required

Get in touch with Ciara and our expert Family Law Team and we’ll advise you on the first steps and best solutions which will suit you, your family and your future plans.

Call us on 0800 840 1363 or make a private and confidential inquiry via our Let’s get Started form.

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To find out more about how we can help you with your query, please contact us.