The norm is that existing family law is utilised to deal with specific cases, similar to what this State has done to date, official Keith Duff of the Department of Children, Equality, Disability, Integration and Youth, pointed out.
Paid-for global surrogacy is a complex legal and policy area, giving rise to important ethical questions, he added.
Speaking to the Oireachtas Joint Committee on Surrogacy, Duff said that the rights of children should be central to any discussions, and that these rights have often not been vindicated in Irish history.
Commodification of children
“International commercial surrogacy does raise concerns about the commodification of children, exploitation of women in poorer countries, the risk of child trafficking and the child’s right to know his or her identity,” he said.
“In this sense, we would encourage all parties to consider not only their rights and best interests as children today, but also how they will feel when they grow up and, as adults, consider the circumstances of their birth,” he added.
The right of a child to know his or her identity and understand the origin of his or her birth is keenly appreciated given the Department’s work on the Birth Information and Tracing Bill, he said.
Any proposed measures must respect the child’s rights to know its origins, including about his or her surrogate mother and any egg or sperm donor, he said.
In this regard, all material relating to a child’s birth should be preserved for the child.
Measures should also ensure a genetic link between the child and at least one intending parent.
Allowing for recognition of parentage where there is no genetic link between the child and either parent would raise serious concerns about child trafficking and undermine the protections for children built into the adoption process, he said.
Measures should ensure that the rights and welfare of the surrogate mother are protected and respected so that, in future, the child can be satisfied that their birth mother was protected from exploitation.
The specific conditions under which domestic surrogacy will be permitted in Ireland were drafted with the aim of providing a robust framework with all required safeguards in place, he said.
Conflicting policy landscape
The Department of Health is primarily concerned to ensure that any proposals on paid-for global surrogacy, do not create a conflicting policy landscape, he said.
The overarching policy and legislative framework must be coherent and avoid confusion, he added, and alignment sought across domestic and international surrogacy.
The issue of payments for surrogacy is of particular relevance and significance in the context of international surrogacy.
The domestic commercial surrogacy ban is based on ethical considerations of the commodification of children, as well as risks of coercion and exploitation of financially vulnerable surrogates.
Government policy to prohibit commercial surrogacy is consistent with similar policies internationally, Duff pointed out.
Paid-for cross-border surrogacy creates issues of parentage, citizenship and, potentially, adoption.
Delays to the bill will have an impact on the Department of Health’s plan for the provision of advanced assisted human reproduction (AHR) treatment through the public health system, he said.
Senator Sharon Keogan (Independent) said that surrogacy is prohibited in many European countries, with Ukraine and Russia among the very few countries where commercial deals are legal.
“This is, obviously, causing me some trouble, especially with the war ongoing,” she said.
“The estimated global market in Ukraine is €5 billion. Over the past five years, more than 4,000 children were born via surrogacy in Ukraine, and 19% of them have foreign parents."
“How can we possibly ban it here and give it the green light in Ukraine? This sets a complete double standard. It is okay to exploit Ukrainian women, but not Irish women,” she said.
Senator Sharon Keogan added that it is “very defeatist” to legislate on the basis that surrogacy “will happen anyway”.
“I have great difficulty with the payments involved and I have grave concerns about the commercialisation of children and babies,” she said.
Public servant Muiris O’Connor responded that the concerns expressed very much informed proposals on legislation for surrogacy in Ireland.
“The discomfort the Senator has expressed with surrogacy practices abroad is part of the real complexity of the issue,” he said.
“The Oireachtas does not have jurisdiction beyond our own boundaries. It is a really complicated matter,” he said.
Weak public administration
Andrew Munro of the Department of Justice said that in countries with weak public administration, intending parents can be exploited by bad actors.
Munro described some of the issues: “For example, the egg that was supplied by the purported donor was not that egg; the child given to the intending parents was not conceived from the sperm of the intending father; the surrogate mother was spirited away over a border immediately after the birth; or the local authority provided a birth certificate that named the intending father as the father despite the child having none of his genetic material.”
It is excessively challenging, given the countries where commercial surrogacy is allowed and their regulatory systems, to differentiate between genuine and exploitative arrangements, he said.
“They are not European Union states with strong rule-of-law systems where it can be guaranteed that certain things are happening,” he said.
“We would have great difficulty from this remove in certifying that a country in Asia, Africa or wherever else was applying standards,” he added.
“One would have to go out and carry out inspections and have an equivalence regime,” he explained.
No commercial surrogacy regime anywhere in Europe provides this type of regulation, which informs the Government’s policy choice in respect of paid-for surrogacy domestically.
Child protection architecture has been developed over decades in this country, he pointed out.