Surrogacy

February 26, 2024

At present, surrogacy in Ireland is unregulated. The process currently only permits one parent, the biological parent, to apply to the courts for a parental order. It is presently not possible for both intended parents to be legally recognised as parents of a child born by surrogate. This has created a lack of clarity for parents. This lack of legal recognition has hugely impacted on people's daily lives.

Positive steps

The good news is that, in December 2023, the Government approved the text of the Health (Assisted Human Reproduction) Bill 2022. This Bill sets out a process for future surrogacy in Ireland and internationally. Critically the Bill intends to provide a pathway for retrospective parenthood. Since Government approval, the Bill has been referred to the Oireachtas Committee on Health. The Bill is currently at the Third Stage and remains open to amendment. Interestingly, if this legislation is enacted, Ireland would become the first State to have such a bespoke legislative solution to the issues arising from surrogacy.

The Bill aims to protect the safety and rights of children born by surrogate but also aims to protect the safety and rights of the various parties involved in a surrogacy arrangement such as the surrogate mother and the intended parents.

The new measures which were presented to the Government in December 2023 revealed the new process that intending parents will have to go through to both become fully legally recognised for the first time.

It is proposed that for future surrogacies there will be a two-step process. This will involve a pre-conception approval by a new Assisted Human Reproduction Regulatory Authority (AHRRA) and then a post-birth Circuit Court process for the granting of a parental order for surrogacy. It is proposed that the parental order should be approved in principle prior to the child’s birth and affirmed shortly thereafter in the Court after the relevant checks and balances are made. If the child is born outside the State, it is proposed that the intending parents will apply for an emergency travel certificate from the relevant Irish embassy or consulate so as to be able to bring the child back to Ireland. They must then apply to the Circuit Court for a parental order for surrogacy between 28 days to six months after the birth.

There is a long list of criteria that both the intending parents and surrogate mother will have to abide by.

  1. The jurisdiction in which the surrogacy is proposed to take place must be included on a list of approved surrogacy jurisdictions established and maintained by the new authority.
  2. The surrogacy agreement must not be commercial in nature and must abide by certain rules whereby the surrogate can be paid only reasonable expenses.
  3. The relevant embryo will have to be created using the gametes of at least one intending parent but not an egg provided by the surrogate mother.
  4. The intending parents must be at least 21 years old and must be unable to have a child without surrogacy.
  5. At least one intending parent must have been resident in the State for a minimum of two years and they must have a reasonable expectation of living to parent a child until they turn 18.
  6. The surrogate mother must be at least 25 years old and must have been resident in her jurisdiction for at least two years.
  7. The surrogate mother must have previously given birth to a child, but must have acted as a surrogate mother on only one previous occasion.
  8. The surrogate mother has to provide full consent and receive independent legal advice as well as counselling.

A second major part of the plans presented to Cabinet involve the retrospective recognition of surrogacies which have also taken place in Ireland and abroad. It is intended that the High Court may grant a parental order on the basis of a number of criteria being met, including a determination by the Court that it is in the best interests of the child. Parents who wish to get a retrospective parental order must show the surrogacy arrangement was not unlawful, that the pregnancy was intended as a surrogacy and that the egg was not provided by the surrogate mother, among other stipulations. It is hoped that parents will also be able to apply to the High Court for the orders before the new authority is set up under further new measures agreed by Ministers, to recognise the challenges these families currently face.

Challenges and Debates

It would appear that the Bill requires strict adherence to the above prescribed criteria and does not include judicial discretion. This is out of sync with the existing family law legislation, which recognises that no two families are the same. If it is necessary that the criteria is strictly adhered to, this could lead to interference with the child’s legal certainty and leave intended parents reliant on their own best efforts to navigate complex medical, legal, psychological and technical areas of knowledge.

It would appear that if the criteria is not strictly adhered to then the surrogacy is a non-permitted surrogacy and the intending parents will not be granted a parental order. It is important to note that this non-permitted surrogacy does not necessarily mean that the intending parents have engaged in non-ethical surrogacy or caused harm to another, it may simply mean they have not complied with every aspect of a restrictive system. There are myriad reasons why intending parents may engage in non-permitted surrogacy. These include the habitual residency requirement not being met, the surrogate using their own egg, there being no genetic link to the child, the surrogate having not had a child before, the surrogate being 24 years old at the time of conception etc. Under the 2022 Bill as currently drafted, the parents will be penalised by being refused their parental order as the Court currently has no discretion in granting a parental order to overlook de minimis breaches of the above list of criteria.

A report published by LGBT Ireland, Equality for Children, Irish Gay Dads, the National Infertility Support and Information Group and Independent Living Movement Ireland suggested that justifiable criteria should be set out which would include prerequisites for intending parents which should be abided by. However, they have suggested that these families should be subject to a case-by-case assessment by the Courts against a set of principles that ultimately view the child’s best interests as the paramount consideration. Subjective assessments and discretionary provisions are a cornerstone of family law legislation. The Court has discretion in awarding guardianship, custody, access, maintenance, domestic violence orders, points of welfare relating to the child, adoption orders, care orders, orders relating to qualified cohabitants, spouses, civil partners and so on. This legislation disregards that families do not lend themselves well to regulation and there is no one perfect way to have a child.

Number 2 above sets out that a surrogacy agreement must not be commercial in nature and must abide by certain rules whereby the surrogate can be paid only reasonable expenses. The Government does not intend to legislate for commercial surrogacies. This means that commercial surrogacy is prohibited. If the new process is enacted, the various parties involved in the process such as legal teams, employees of the AHRRA, treatment providers, counsellors, any agencies involved, any airlines required for travel abroad and any other professional bodies required will be remunerated for their work but the surrogate who is giving up her body is asked to do this for nothing in return except her reasonable expenses. It seems ludicrous that the remuneration of a woman for her time, discomfort, and medical risk in acting as a surrogate should be prohibited. Surely in circumstances where the surrogate has received independent legal advice and counselling, and there is no evidence of duress or undue influence, there would be very little reason to refuse to recognise the lived reality of the child and the wishes of all autonomous adults involved.

The report published by LGBT Ireland, Equality for Children, Irish Gay Dads, the National Infertility Support and Information Group and Independent Living Movement Ireland noted that worryingly, should the current framework under the Bill be replicated in the international context, the prohibition on remunerating the surrogate would immediately exclude surrogacy agreements in the USA and Canada, which are some of the few countries that provide surrogacy agreements for same sex male couples.

However, in April 2022, former Special Rapporteur on Child Protection, Conor O’Mahony, recommended that an altruistic non-commercial approach be taken and that the Bill only deal with domestic surrogacy. He suggested that this would incentivise people to engage in domestic surrogacy and allow the Government to regulate what happens in domestic surrogacy arrangements more effectively. He recommended that by being altruistic only it would ensure that, in our domestic framework, the laws which we can pass, which we do have control over, would meet the very highest standards around the laws governing “sale” of children.

He noted that in the context of international surrogacy it may be difficult to have the advance approval because of the fact that the Irish Courts cannot grant or withhold approval for what happens in another jurisdiction. Mr O’Mahony suggested that we arrange our laws in such a way that domestic surrogacy is a more streamlined and preferable process for intending parents, to try and have as many of them as possible stay within the jurisdiction and avoid international surrogacy. His recommendations in this respect do not appear to have been taken into account.

Number 7 above setting out the requirement for the surrogate to have previously given birth to a child and to be able only to act as a surrogate on one previous occasion is not a requirement driven by best practice or medical evidence. Evidence of surrogate input was presented at the Joint Oireachtas Committee on International Surrogacy, and it was clear that surrogates do not see their own children as comparable to children born to them as a surrogate. Surrogates have stated that it is a completely different mindset.

Clearly there is much to debate in this sector. Keep an eye on our website for any further updates. Wolfe & Co LLP Solicitors are happy to help you traverse this challenging legal space.

 

By Aislinn Collins Solicitor.

 

This article is for general information purposes/general overview only and does not constitute legal or other professional advice.  We recommend seeking legal advice to interpret and advise on any aspect of the law.

 

February 2024 Wolfe & Co. LLP Solicitors