It is the defining feature of the Irish surrogacy position and the thing families find hardest to explain to anyone who has not lived it: one parent is recognised and one is not, and no amount of doing the night feeds changes it.
How the Asymmetry Arises
Because the surrogate is the legal mother and the only other route currently available runs through biology. A biological father can generally establish parentage and, on that footing, seek guardianship — giving him a legal relationship, a voice in major decisions, and status that carries practically. A parent with no biological connection has no route to parentage at all under the law as it stands. Their route is guardianship, which is genuinely worth having and is not the same thing: it carries qualifying conditions, typically relating to the relationship between the adults and to periods of cohabitation and day-to-day care, and it expires when the child turns eighteen. For two-father families this is the structure of the household in law. For heterosexual couples it lands on the intending mother, which families frequently find bewildering — particularly where her own egg was used. And marriage does not solve it: the spouse of a biological father does not become a legal parent by reason of the marriage.
Why It Is More Than Daily Inconvenience
The day-to-day version is real and grinding — medical consent, school forms, travelling with your own child, and the accumulated experience of having to explain yourself. Guardianship substantially improves all of that, which is why it is the practical priority and why it should be pursued the moment the route is open rather than years later. But the consequence that actually justifies urgency is succession. A parent with no legal parentage is not a parent for inheritance purposes: on intestacy, a child does not take from them as a child, and a will leaving everything to “my children” without defining the term may not include the child they raised. That is not a daily inconvenience. It is a permanent outcome that arrives without warning and cannot be repaired afterwards — and it is almost entirely preventable with a properly drafted will made now. If a second parent does only two things, they should be: secure guardianship as soon as the route is open, and make a will that names the child expressly.
For the recognised parent: your position does not protect your partner or your child from any of this, and it is worth making a will that reflects that. If something happened to you, the person raising your child would hold guardianship at best and no parental status at all at worst — and the appointment of testamentary guardians is one of the few tools available.
Find out which route is open, and when: 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.