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Assisted Reproduction

International Surrogacy: The Intersection Between Irish And Indian Law

Hat tip to my colleague, Stephanie Caballero, for bringing this article to my attention. For any Irish couples considering surrogacy abroad, this should be a must read:

SUSAN COOPER’s baby boy, Alex, is the talk of the town. “Everyone here in Youghal has been fantastic,” she says. “People come up to me and say, ‘He looks the head off his father’. Or, ‘He has your colour’. He’s adorable. After everything we’ve been through, I’m just enjoying time with him.” Alex was born via a surrogate mother in India last August. While still considered a novelty, it’s a route being chosen by more and more would-be parents who aren’t able conceive on their own. But it’s also a process which can be riven with legal uncertainty.

“My newborn son and I had to remain in India for five weeks while my husband returned to Ireland to go through the court system, having being directed there by a government department,” says Ms Cooper. “As you can imagine, this was devastating for my husband and I. All we ever wanted was a family, and at only a few days old it was ripped apart thanks to the indifference of the Irish Government.”

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 may be uncertain. However, passport officials in Ireland say they have only been officially notified of between 35 and 40 births, suggesting that many are deliberately avoiding telling the authorities. There is no specific law for surrogacy in Ireland. This means surrogate children born to parents who have difficulty meeting strict legal requirements relating to parenthood and guardianship can be left in a legal limbo, without a passport or citizenship of any kind.

Legislation was recommended in a report from the Commission on Assisted Human Reproduction, published seven years ago, but has never been produced by successive governments. Minister for Justice Alan Shatter recently published new guidelines giving information to commissioning parents on practical and legal considerations. He also insisted it was incorrect that parents would need to leave a new-born child abroad while they returned to Ireland to obtain court orders to get a passport for their child. His comments, however, have angered many parents who have found themselves unable to get clear answers from State authorities and who have spent weeks – and in some cases months – waiting to get passports for their children.

For the Coopers, it was their last chance to have a child. Susan, a factory worker, and her husband Anthony, a carpenter, were both in their mid-40s. They hadn’t been able to have a child naturally. They were at an age at which many IVF clinics stop providing services. The international adoption route was, in effect, blocked off as a result of new restrictions. Surrogacy was the only option. “People think that surrogacy is for rich couples; that you wait on a sun-lounger sipping a cocktail, while another woman has the child. It’s not like that. “It’s very, very tough and stressful. You need to be a strong couple to get through it. With adoption, you know the baby is coming. There is a defined process. “With surrogacy, there is so much uncertainty, which is made worse by the lack of legislation over here.”

A key obstacle for many couples is getting a passport for the child. Mr Shatter says Irish authorities may issue an emergency travel certificate to enable a child to enter the State. In the case of the Coopers, this was easier said than done. When they went looking for such a certificate, they were told it was issued only in “exceptional cases of genuine emergency”. After getting a court order for a passport – which entailed DNA tests and evidence relating to parentage and guardianship – they said they had to wait another week to get the passport itself. In all, it took five weeks of toing and froing. It was also hugely expensive.

“We were lucky with the judge we got. He dealt with it very quickly, but we’re aware of cases where that hasn’t been the case,” says Ms Cooper.

The case of Robyn Maye-Coffey has been the subject of considerable media attention. In this case, her parents fought for 18 months to get citizenship and a passport. “We ended up bringing our lives and that of our daughter into the public domain to highlight the lack of legislation,” says Catherine Maye. Her daughter’s case was finally resolved in the High Court in recent days. However, the couple are bound to a confidentiality agreement.

Senior officials involved in the process of issuing passports – speaking on condition of anonymity – point out that they are obliged to work within the confines of the law, which is in place to prevent abduction and protect the best interests of children. “The passport is not a magic bullet – parents need to establish citizenship and guardianship for the welfare of the child. When that is established, that’s where we come in and issue a passport,” a senior official said.

What everyone agrees on is that legislation is needed to make the process easier and faster and to give much-needed legal certainty. Mr Shatter says officials are working on this. In the meantime, he urges those considering arranging a surrogate birth outside the State to obtain detailed legal advice beforehand.

Susan Cooper is continuing to live amid another form of uncertainty and invisibility in the eyes of the law. She’s not legally entitled to maternity leave – though her employer has been very good to her – and she is not the legal mother of Alex. “My name isn’t on the birth cert. I can’t sign any official forms for him. I worry about something terrible happening to my husband. What would happen then? “The only route for me is to adopt my own child, which seems very unfair. This is an area the Government must address and deal with urgently.”



The number of surrogate children born abroad to Irish parents that authorities know about, though the real figure is likely to be in the hundreds

€2 billion

The estimated worth of the surrogacy industry in India next year


The typical overall cost of a surrogacy in India


The typical overall cost of surrogacy in the United States


The typical payment to an Indian surrogate mother for carrying a baby


The typical payment to a US surrogate mother for carrying a baby


11 comments for “International Surrogacy: The Intersection Between Irish And Indian Law”

  • Jon

    What a lovely, fairy-book story! Older, childless couple of moderate means who couldn’t possibly dream of becoming parents find their dreams come true with the help of an Indian woman. Obviously they could never do this in the United States. I’m a bit skeptical of the 85K USD pricetag for an American surrogacy, wouldn’t you agree Andrew? Most people I know who do this in the States and who don’t cut any corners tell me this costs upwards of 140K USD, after all is said and done. And that’s assuming they get lucky the first time. Looks like those numbers need a bit of a refresh.

    • Hi Jon,

      85,000 is certainly reasonable if both Intended Parents are genetically related to the child. If an egg donor is required, I agree that the price will be north of $100,000.

  • Eric W

    If you have to adress the same issues like Robyn Maye-Coffey who fought for 18 months to get citizenship and a passport, there is no way to think India is a low cost destination !

    I think the best way to solve the issues is to legalize surrogacy in Ireland.

  • Jon


    Don’t see Ireland legalizing surrogacy anytime soon. There is a quasi-theocratic mindset ruling this “European” country. Abortion is still illegal and gay rights are anathema. Doubt very much Irish lawmakers will see an urgency in passing laws that facilitate parenthood for its citizens…

  • Andy, happy to help get information out regarding surrogacy and I’m glad you posted it to your blog, which has a great readership. As the other commentator pointed out, if you have to wait 18 months to get your child out of the country, India is not such a low-cost alternative to surrogacy. I cannot tell you how many stories I’ve heard from clients who are either ill-informed or who proceed against all legal advice because they think it won’t happen to them, only to be stuck in India with no way home. And, when they finally do get home, oftentimes their legal status is still in question with their children.

  • Jon


    Are you implying that Irish nationals who use the US for surrogacy have a shorter wait than nationals who use India?

    I believe you are mis-informed on this subject. While the citizenship issue is a tough hurdle to jump for many European nationals, these nations do issue travel visas for their nationals, out of compassion, to allow the babies to leave the country. If there is a delay, it usually involves issues surrounding genetic confirmation of parentage.

    I would not (inadverntently)stigmatize one model for surrogacy over the other, when in fact the playing field is presumably the same. If you know otherwise, by all means please educate the readership.

  • Jon


    Your comments are misleading. The article does not state it took 18 months to take the baby out of the country; it states that one couple took 18 months to get a passport and citizenship granted. For your information, a baby born in India (or the US for that matter) via surrogacy doesn’t necessarily need a passport to leave India. An exit visa or “emergency travel certificate” as the article notes is sufficient for the commissioning parents to leave the country with the child until the citizenship issues are resolved in the host country. This has been the case usually with thousands of Europeans who deal with tough surrogacy laws in their home countries, including the Irish, Spaniards, Germans, French, etc. The list is long, but eventually they all seem to make it back to their home countries with their newborns. Rarely, if there is an inordinate delay, it usually involves issues surrounding genetic confirmation of parentage. Those cases are few and far between and are all very well-documented.

    Further, are you implying that Irish nationals who use the US for surrogacy have a shorter wait than nationals who use India? If you are then you are mistakenly stigmatizing one model for surrogacy over the other, when in fact the playing field is presumably the same. If you know otherwise, by all means please educate the readership.

  • Jon

    Oops, sorry for double-post, this comment system is a bit funky at times…

  • Eric W

    I can tell this is absolutely not true for french couples. French authorities always refuse to give emergency travel documents and so childrens are trapped in India during a long time.

    The only french people able to escape from that bad situation are singles who put an indian mother’s name on the birth certificate.

  • Jon

    Eric W,

    Can you provide a documented case of this. I think the model for surrogacy babies for French couples is based on the Menneson case. Although this took place in the US, the laws are the same for India as well. Please refer to this article:


    Note comments in article made by the French Supreme Court: “The Court did say, however, that nothing prevented the children living with the Mennessons in France.”

    I am not saying that some couples run into delays with getting emergency exit visas whether they are in the US or India and they blantanly violate French surrogacy laws but the French are civilized people and they do abide by the UN Convention on the Rights of the Child. If the child’s French paternity is proven they can’t deny a small baby of French parentage to remain a refugee in a foreign country. I simply can’t believe that the French public would tolerate that.

    Please provide some examples of what you speak of.

    Please also note this ruling recently by another French court which granted French civil status to Indian born twins despite the ban on surrogacy. This ruling will probably become the precedent for all cases, present and future.


  • Eric W

    Jon, your analysis is wrong. The Mennesson case is related to children born in USA. Because of the US constitution, the Mennesson children were granted US citizenship, and so they get US passport to come back in France.
    In India, the laws are different and a child born in India from a foreign couple is not granted Indian citizenship, and so Indian authorities can not deliver a passport to this child. And the French authorities always refuse to deliver a passport and a visa when they suspect surrogacy.
    And then, the additional case you refer is corresponding to a French single. The name of the Indian surrogate is on the birth certificate, and so the children have the Indian citizenship.
    India like Ukraine is a nightmare for french couples because of these issues of passport and visas. You put these people in serious trouble by hiding this issue. The french public do not support this unfair situation, according to polls, but when dealing with surrogacy, French authorities are becoming mad.

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