Surrogacy has allowed couples and individuals to become parents in circumstances where they were prevented from doing so, whether due to fertility issues or recurrent pregnancy loss. In addition, LGBT+ parents have often embraced surrogacy as an option in their parenting journey.
Unregulated risks
The risks, in an unregulated space, include the exploitation of women and violation of laws preventing the sale of children.
Surrogacy is not legal in many countries across Europe, including France and Germany. Britain permits altruistic surrogacy. Ukrainian and Russian laws have been described as lax in this area.
In Paradiso and Campanelli v Italy, a child was placed in care in circumstances where a surrogacy arrangement, agreed in Russia, did not comply with national standards in Italy. In the US, commercial surrogacy does not contravene the law.
In 2014, the Irish Supreme Court confirmed the common-law presumption that, despite intention or genetic link, the surrogate mother is the legal mother of the child.
As noted by O’Donnell J in MR v An t-Árd-Chláraitheoir: “The absence of legislation does not mean an absence of assisted reproduction; rather it means an absence of regulation … This court, in clear and forceful terms, drew attention to the absence of regulation in its decision in Roche v Roche [in 2010] The need for legislation is even more urgent today.”
The Health (Assisted Human Reproduction) Bill has recently cleared the Dáil’s third stage. A total of 110 pages of amendments appears unprecedented.
This is a highly complex piece of legislation, described, in part, by Deputy Stephen Donnelly as a “bespoke and comprehensive solution to the issues arising”.
What will be regulated
The following are sought to be regulated as part of the legislation:
- Gamete and embryo donation for assisted human reproduction,
- Domestic altruistic surrogacy,
- Gamete and embryo donation for research,
- Preimplantation genetic testing of embryos,
- Embryo and stem-cell research, and
- Posthumous assisted human reproduction.
International surrogacy and past surrogacy arrangements are dealt with in the amendments.
For the purposes of this article, discussion will be limited to domestic altruistic surrogacy, set out in the bill. Importantly, commercial surrogacy is not to be permitted in Ireland, with no payment or reward save for reasonable expenses (section 34).
Both a donor and a surrogate can claim for certain documented expenses related to the surrogacy, including travel, medical, legal, counselling, and loss of income.
Regulation is one of the main tenets of this legislation. The Assisted Human Reproduction Regulatory Authority (AHRRA) will be tasked with protecting, promoting, and aiming to ensure the health and wellbeing of the surrogate mother, intending parent(s), and child born as a result of assisted-human-reproduction (AHR) treatment (section 78).
Oversight
The authority will aim to regulate surrogacy through issuing licences, overseeing surrogacy agreements, and keeping a National Surrogacy Register of all those children born as a result of AHR treatment and a surrogacy agreement.
Importantly, a domestic surrogacy agreement is a permitted surrogacy agreement only where a surrogacy has been approved by the AHRRA prior to any AHR treatment being provided (section 51).
The final success of a surrogacy application, therefore, lies with the AHRRA. An individual without a licence will be prevented from providing AHR treatment. Licences will be issued by the AHRRA (section 109).
An AHR treatment provider shall not use a relevant donation to create an embryo from that donation and the gamete of a genetic family member of the relevant donor (section 33).
An AHR treatment provider shall not provide AHR treatment to a relevant person unless satisfied that the relevant person or persons will not present a significant risk of harm or neglect to any child (section 16). AHR counselling shall be provided to the intending parents or parent, as well as the surrogate mother, and a copy of the report will be provided to the AHR treatment provider (section 17).
An AHR treatment provider will not provide AHR treatment to a person unless consent in the specified form is given to the intending treatment (section 18).
Residing in the State
In the case of domestic surrogacy, a surrogate mother must habitually reside in the State, as must the intending parents, for not less than two years (section 49). The embryo transfer must be undertaken in the State.
The surrogate mother can manage all aspects of her health during pregnancy and maintains the right to freely seek and obtain medical services (section 56).
A woman may act as a surrogate mother only if she has previously given birth to a child before entering into the agreement and has reached 25 years of age. A surrogate may not enter into a surrogacy agreement more than twice (section 52).
Interestingly, there does not appear to be an upper age limit for surrogate mothers, where a woman’s fertility can continue into her 50s.
The surrogate mother and intending parents shall have received legal advice about the legal implications of the surrogacy agreement (section 58). Legal advice and counselling are both recommended by the UN Special Rapporteur as being in the interests of the child born via surrogacy.
A surrogacy agreement can be entered into by two intended parents jointly or a single intended parent – in both cases the minimum age being 21 (section 53).
DNA link
Section 53(3) states that every surrogacy agreement shall involve an embryo created using the gamete of either or both of the intending parents (or single intended parent). This is important to note, as there will be a DNA link between the child and one or both of the intended parents.
At least one of the intending parents (or the single intended parent) must have a reasonable expectation of living to parent the child until the child reaches at least 18.
Section 5(1) states that the Circuit Court shall have jurisdiction to hear and determine proceedings under the act. Sections 62 and 63 address the application for, and granting of, a parental order for a child born as a result of permitted surrogacy.
An application should be made by the intending parent(s) not earlier than 28 days following birth of the infant and not later than six months after the birth. The surrogate mother must consent to the granting of the order.
The amendments have inserted that, in any relevant proceedings before the court, in determining whether to make the order, the court shall regard the best interests of the child as the paramount consideration.
Section 64 sets out the effect of a parental order: namely, the child becomes the child of the intending parent only whomever is included in the order and, in particular, the surrogate mother will lose all parental rights and duties toward the child.
When parental orders are made pre-conception (as in South Africa and Portugal), the intending parents are recognised as the child’s legal parents from the moment of birth. The AHRRA shall receive a copy of the parental order.
Donor AHR
The allocation of the parentage of children born as a result of donor-assisted human reproduction had already been legislated for in parts 2 and 3 of the Children and Family Relationships Act 2015, which came into effect on 4 May 2020.
Section 156 of the Health (Assisted Human Reproduction) Bill 2022 has inserted section 6BA into the Guardianship of Infants Act 1964, which provides that, where a child is born as a result of AHR treatment provided pursuant to a surrogacy agreement, then, subject to a statutory declaration containing agreement of the surrogate mother and intending parent(s), the intending parent(s) may become guardian(s) of the child.
This is a welcome piece of legislation whose intentions are well grounded. Banning surrogacy would invariably result in it going underground, putting the lives of mothers and children at risk, and effectively create a legal wasteland.
Unregulated surrogacy means that older laws are relied on in situations like citizenship and obtaining passports – those laws reflecting an environment long before surrogacy existed.
It will be a matter of time, and trial and error, to judge whether this voluminous bill when enacted – and once the amendments have been inserted into the body of the legislation – will suitably address current problems and create solutions for those forming families by surrogacy.
Aoife Byrne is a solicitor and a member of the Gazette Editorial Board, with a particular interest in family-law matters.
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