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Ireland's proposed surrogacy laws fail to acknowledge international arrangements

11 February 2019
By Dr Brian Tobin
School of Law, National University of Ireland Galway
Appeared in BioNews 986

A recent survey involving 90 countries reveals the overwhelming popularity of international surrogacy arrangements among many Irish couples. The survey, carried out by Families through Surrogacy, an international non-profit organisation that provides support to couples and individuals going through this process, concludes that Ireland has the second-highest rate of surrogacy use in the world after Israel. Indeed, Ireland's Department of Foreign Affairs reports that 159 babies born to surrogates abroad have entered the country with their intended parents via Emergency Travel Certificates in the last decade. 

Surrogacy remains unregulated by Irish law and this is why the vast number of Irish couples having recourse to surrogacy must go abroad to the USA, Canada, the Ukraine and other jurisdictions where this method of assisted human reproduction is recognised by law. In those jurisdictions where surrogacy is regulated and practised, the child's intended parents, the couple that commissioned the arrangement, are recognised as the legal parents. This is not so upon their return to Ireland, and proposed surrogacy laws will not alter this.

Despite the significant and growing number of children born through international surrogacy arrangements that are living in Ireland, the restrictive surrogacy proposals contained in the General Scheme of the Assisted Human Reproduction Bill, which has been undergoing pre-legislative scrutiny by the Joint Committee on Health for over a year (see BioNews 934), will not enable most parents who chose this route (or who might choose it in the future) to establish their legal parenthood under Irish law.

Ireland's proposed surrogacy laws will only prospectively regulate those surrogacy arrangements that are carried out in Ireland. Domestic, altruistic, gestational surrogacy will be regulated, while commercial surrogacy will be expressly prohibited. These proposals were drafted by the Department of Health, which has emphatically said that the state can only regulate assisted human reproduction activities that occur in Ireland.

This is a rather incongruous position given that the Children and Family Relationships Act 2015 regulates assisted human reproduction activities that occurred outside of the state – provided he/she is the spouse, civil or cohabiting partner of the birth mother, an intended parent of a child conceived via donor sperm in a foreign clinic before the commencement of Part 2 of that legislation (which is due this year) – can have his/her parenthood recognised under Irish law.

In any event, the upshot of the proposed surrogacy laws means that the intended mother in an international surrogacy scenario will never be able to be recognised as her child's legal mother under Irish law, even where she has provided the egg used to form the embryo that was carried by the surrogate. The surrogate, as the person who gave birth, will continue to be regarded as the child's legal mother.

In Ireland, an intended mother can only be recognised by a court as a guardian of her child a minimum of two years after the child's birth via the provisions of the Children and Family Relationships Act 2015. However, guardianship is but a legal concept that provides a person with parental responsibility for a child during childhood – it ends once the child reaches the age of 18. The intended father in an international surrogacy scenario can be recognised as the surrogate-born child's parent and guardian under existing law following a successful court application, but he must also be the genetic father.

Although fewer in number, male same-sex couples who avail of international surrogacy are similarly affected because where there are two intended male parents or co-fathers, the man who is not genetically linked to the child can never be recognised as a legal parent, and can only become a court-appointed guardian of the child after two years.

In the UK, both intended parents of children born through international surrogacy can have their legal parenthood recognised under UK domestic law because of the child-centred approach to the issue adopted by judges there. Given that the people voted to insert express protection for children's rights into the Irish Constitution in 2012, a child-centred approach to parenthood and international surrogacy is also required in this jurisdiction.

Under the 'Children's Amendment', Article 42A, the state affirms the 'natural and imprescriptible' rights of all children and promises, by its laws, 'to protect and vindicate those rights'. The General Scheme of the Assisted Human Reproduction Bill must be revised to reflect this express constitutional guarantee and the reality that many Irish couples have recourse to international surrogacy arrangements. For Irish couples, an estimated 68 percent of all surrogacies take place in the Ukraine; the state cannot simply enact legislation that wilfully chooses to ignore those Irish children who were born to surrogates abroad.

Although it is a complex and unenviable task, Irish policymakers must ensure that the rights of children, and parents, in international surrogacy arrangements are effectively realised in any future domestic legislation regulating surrogacy.

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