A two-tier financial system for surrogacy arrangements is inevitable in any move to regularise the practice, the Special Rapporteur for Child Protection, Professor Conor O’Mahony, has said.

The incidence of surrogacy was also likely to increase following regulation, but this would not be from a base of zero, Prof O’Mahony said.

Only those who have the means to finance it will continue to access paid-for global surrogacy, he predicted, if the legal system provides for altruistic-only domestic surrogacy while also allowing for the possibility of international commercial surrogacy.

Commercial in nature

International surrogacy was invariably commercial in nature, Prof O’Mahony said, since there was no realistic way to identify an altruistic surrogate in another jurisdiction.

He warned that a two-tier financial dimension would be inevitable – with global commercial surrogacy only available to those with the means to finance it. 

“The terms of reference of my report did not extend to this consideration. My remit was to examine how best to protect the rights and best interests of the children involved,” Prof O’Mahony told Gazette.ie.

On the subject of costs, former High Court President Mr Justie Peter Kelly previously commented to the Bar Review that “Under the current system, as they say, the only people who can litigate in the High Court are paupers or millionaires."

Highest form of safeguard

The recommendation to legislate for altruistic domestic surrogacy only was aimed at providing the highest form of safeguard against the sale of children in this jurisdiction, the Special Rapporteur added.

He accepted that some might perceive a “double standard”, in that paid-for surrogacy was seen as undesirable for women living in this jurisdiction – yet Irish courts may yet facilitate commercial arrangements set up in poorer countries.

In relation to future law reform, Prof O’Mahony’s report recommends that recognition of domestic surrogacy be restricted to altruistic surrogacy whereas no corresponding restriction would apply to international surrogacy.

“What some might call a double standard in the recommendations in my report is, in reality, an effort at striking a very difficult balance between multiple competing considerations that, at times, pull in opposite directions,” Prof O’Mahony said.

Twin purposes

The Special Rapporteur's recommendation that global paid-for surrogacy deals should be subject to High Court approval – whereas domestic surrogacy arrangements could be approved by a lower court – served twin purposes related to the additional variables and attendant risks involved internationally, he said.

The end goal is to make domestic surrogacy more attractive than international surrogacy, thus incentivising intending parents to remain within the jurisdiction, where there is a better prospect of effectively regulating and supervising any arrangements, he said.

Heightened level of scrutiny

In cases of paid-for global surrogacy, court proceedings would bring a heightened level of scrutiny in advance of any recognition, he claimed.

“This emphasises the seriousness of the process and makes it clear that it would not be a rubber-stamp exercise,” Prof O’Mahony said.

The report’s terms of reference required Prof O’Mahony to have regard to ECtHR case law, and to the UN Special Rapporteur’s report on the sale and sexual exploitation of children.

The UN Special Rapporteur accepts that commercial surrogacy can be regulated in a way that addresses concerns about the sale of children, Prof O’Mahony added. 

“The simple reality is that Ireland cannot legislate to prohibit commercial surrogacy in other jurisdictions,” he said.

However, all forms of surrogacy are illegal in Finland, France, Germany, Iceland, Spain, Portugal, Italy and Bulgaria.

Blanket prohibition?

Any blanket prohibition of the recognition of international commercial surrogacy arrangements would also likely be in violation of ECtHR judgments in Mennesson v France (2014), and the 2019 Advisory Opinion concerning the recognition in domestic law of a legal parent-child relationship between a child born through a gestational surrogacy arrangement abroad and the intended mother.

“The factors that drive the demand for surrogacy at present are non-legal in nature,” he said.

Irish couples engage in surrogacy without a legal framework and knowing that one parent will be left a legal stranger to the child, he added. 

This is evident in the enormous medical, emotional, financial and legal lengths that people go to when engaging in surrogacy, he concluded.