The shared misconception first, because it does the most damage: marriage does not confer parentage. The spouse of a biological father does not become a legal parent by reason of the marriage, and the surrogate remains the legal mother. Couples who assume otherwise are frequently the ones who have done no further legal work at all.
Two Fathers
Surrogacy is the route, and surrogacy is the arrangement Irish law has least provided for — so this is where the gap bites hardest. The biological father can generally establish parentage and seek guardianship. The other father has no route to parentage at all under the law as it stands, and must look to guardianship, which carries qualifying conditions and expires at eighteen. The result is a household in which one parent is a parent in law and the other is not, permanently, with everything that follows through medical consent, school and travel and, most consequentially, inheritance. What the 2024 Act would change, for arrangements meeting its conditions, is substantial: the parental order mechanism transfers parentage regardless of the couple’s sex, and Part 12 would provide a retrospective route. But the conditions apply equally — gestational surrogacy, a genetic link to at least one intending parent, non-commercial arrangements, and residence requirements for past arrangements — so some families will qualify comfortably and some will not.
Two Mothers
Often better placed, and by no means always — and the assumption that they are covered causes real harm. Where a child was conceived through donor-assisted reproduction meeting the requirements of the Children and Family Relationships Act 2015, there is a route by which the birth mother’s partner can be a legal parent, and where it applies it works well. Where treatment took place abroad, or before the relevant provisions, or informally without clinical involvement, that route may not be available at all — and those are common situations, not edge cases. Provision has also been made addressing certain female same-sex couples who undertook home insemination before a specified date, which is an indication of how fact-specific this territory is. The safe course is the same for both family types: establish the position rather than assume it, because a striking number of couples believe they are covered and are not. Then secure guardianship as soon as the route is open, make wills that name the child expressly, sort consents and documentation, and preserve the evidence a future application would need — including, for surrogacy families, contact with the surrogate.
One conversation resolves the uncertainty. Whether both of you are legal parents of your child today is a question with a definite answer, and most families have never had it confirmed. It is the foundation for every other decision.
Establishing where your family actually stands: 01 5827148.
Richard O’Shea — Solicitor & TEP
Solicitor at Mary Molloy Solicitors (established 1981) and a TEP of the Society of Trust and Estate Practitioners. The firm advises on the legal position of families formed through surrogacy and assisted reproduction — parentage, guardianship, birth registration, travel documentation, and the succession and estate planning consequences that the current gap in the law creates. This is a legal practice: it is not an agency, does not match or introduce surrogates, and takes no part in any commercial arrangement. Consultations by telephone, video or in person. 01 5827148 · richardoshea@marymolloysolicitors.com · LinkedIn
General information, not legal advice. This website contains general information about Irish law relating to surrogacy and assisted human reproduction. It is not legal advice and does not create a solicitor—client relationship. Every family’s position turns on its own facts, and advice on yours requires a consultation.
The law is changing and this page has a date. The position described across this site is stated as at 31 July 2026. The principal surrogacy provisions of the Health (Assisted Human Reproduction) Act 2024 were not commenced at that date. Commencement orders can be made at short notice and will alter this position materially. Confirm the current position before acting.
This is a legal practice, not an agency. Mary Molloy Solicitors provides legal advice and representation. It does not operate as a surrogacy agency, does not match, introduce or recruit surrogates or intending parents, does not advertise for or on behalf of any surrogate, does not recommend or receive any payment from any clinic, agency or intermediary, and takes no part in arranging or facilitating any payment beyond the provision of legal services. Nothing on this site is an offer or invitation to enter any commercial surrogacy arrangement.
Foreign law and medical matters. Where an arrangement involves another jurisdiction, the law of that jurisdiction applies to what happens there and independent legal advice must be taken locally — nothing here states or implies that any arrangement is lawful or unlawful in any other country. Nothing on this site is medical advice, and questions about treatment, suitability or risk are for your treating clinicians.
Fees. Fees are agreed in writing with the client at the outset. In contentious business, a solicitor may not calculate fees or other charges as a percentage or proportion of any award or settlement.
Tax. Nothing on this website is tax advice. Where parentage affects succession, gift or inheritance treatment, those questions belong with your accountant or tax adviser and with Revenue’s own guidance, and should be addressed before any step is taken.