The Minister for Justice, Alan Shatter, has published new guidelines for people who have used surrogate mothers abroad to advise them on their legal rights and how to obtain a passport for the child they bring home.

The guidelines do not consider such ethical issues as whether surrogacy is inherently exploitative or whether motherhood should be ‘split’ between a birth mother and a biological mother (the egg donor).

Surrogacy involves gestating the baby in another woman’s womb. A number of Irish couples have used foreign surrogacy mothers, usually from India, Ukraine and America.

The guidelines state that, under Irish law, the woman who gives birth to a child is the legal mother of the child. It further states that under the Guardianship of Infants Act the mother of a child born outside marriage is the child’s sole guardian.

They also state that, if the mother is married, her husband is presumed to be the father whether or not he is the sperm donor.

The guidelines state that, under Irish law, family responsibilities cannot be subject to the law of contract and cannot be bought or sold. “The surrogate mother and the child will have a lifelong relationship with each other,” it says.

If the would-be father is the genetic father of the child the Circuit Court can acknowledge him as the child’s legal parent by granting him declaration of parentage, which will normally require DNA evidence from an independent, reliable source.

Along with the declaration of parentage, the father must apply for guardianship of the child.

Only a parent or guardian can apply for a passport for a child, and a passport will generally be issued only where guardianship on the part of an Irish citizen has been established. In the meantime, the authorities may issue an emergency travel certificate to enable the child to enter the State.

This will require the consent of all the child’s guardians, including the surrogate mother and her husband, if she is married; and the adults bringing the child into the State must provide a written undertaking that they will notify their local health centre of the child’s presence in the State within two working days. The genetic father must provide an undertaking that he will seek declarations of parentage and guardianship from the Circuit Court within 10 days, or 20 in exceptional circumstances.

The surrogate mother’s consent must be full, free and informed; the application form must be translated into her own language if necessary; if she is illiterate, a lawyer must certify they have read it to her and she understands it.

The Government-appointed Commission for Assisted Human Reproduction recommended in 2005 that in surrogacy arrangements, the commissioning parents be deemed to be the legal parents.

One of the members of the commission, Christine O’Rourke, expressed dissent about this recommendation, saying that “the risks of exploitation and commodifcation” accompanying surrogacy outweighed its benefits.

Ms O’Rourke, Advisory Counsel to the Attorney General at the time, expressing her dissent in the CAHR’s report, recommended instead that surrogacy be prohibited.

She said that there was “a broad cultural consensus that a woman who has just given birth may be uniquely vulnerable and the removal of her baby against her will is repugnant, unless she poses a threat of immediate harm to the child”.

She added: “This social norm is reflected in Article 10(2) of the United Nations International Covenant on Economic, Social and Cultural Rights (ICESCR), which obliges Contracting States to accord special protection to women who have just given birth.”

Austria, Germany and Italy, among other countries, ban the use of donated eggs because they believe it is wrong to split motherhood between a birth mother (that is a surrogate mother), a genetic mother (that is the egg donor), and even a social mother (that is someone who is neither the surrogate mother nor the genetic mother but who raises the child).

Austrian law seeks to ensure that medically assisted procreation takes place similarly to natural procreation, and that the basic principle of civil law, that it is always clear who the mother is, should be maintained by avoiding the possibility that two persons could claim to be the mother.

A recent ruling by the European Court of Human Rights held that Austria, in maintaining this principle, was not in breach of the European Convention of Human Rights.