The Government has approved legislative proposals that would formally recognise international surrogacy and past surrogacy arrangements.

The decision follows the establishment of an inter-departmental group after the Joint Oireachtas Committee on International Surrogacy published a report on the issue earlier this year.

The Department of Health said that, once drafted, new legislative provisions would be inserted into the Health (Assisted Human Reproduction) Bill 2022 Bill (AHR bill) at Committee Stage.

Once finalised, however, these provisions will need further Government approval.

Children’s rights

The AHR bill regulates, for the first time in the State, a wide range of AHR practices – including domestic altruistic surrogacy – but does not cover surrogacy arrangements undertaken in other jurisdictions, as originally published.

“Key principles underpinning the Government’s proposals are the protection of the rights of all children born as a result of surrogacy arrangements, and the safeguarding of the welfare of surrogate mothers,” the department stated.

The Minister for Health Stephen Donnelly said that the proposals had the potential to provide hundreds of Irish families with a route to formal recognition by the State of the surrogacy arrangements that they had undertaken, or would undertake, in other jurisdictions.

He added that the Government had accepted the majority of the recommendations made by the Oireachtas committee’s report, and had tried to implement its proposals, “in so far as possible and appropriate”.

Two-step process

Under the proposals, a two-step process will be introduced to allow for the recognition of parentage in future international surrogacy arrangements, encompassing pre-conception approval by the Assisted Human Reproduction Authority (AHRRA) and a post-birth court process for the granting of a Parental Order for Surrogacy.

Those seeking to undertake international surrogacy arrangements will have to meet the legal criteria in the jurisdiction in which the surrogacy is intended to take place, and also the criteria set down in the Irish legislation.

The Government says that these criteria “will correspond largely with the conditions to be met for a permitted domestic surrogacy agreement”.

Surrogate mothers will not be paid more than the reasonable receiptable expenses that are incurred.

Past arrangements

Surrogacy arrangements – both domestic and international – undertaken before the commencement of the AHR bill may also be recognised, as long as some key criteria are met.

These will include:

• That the surrogacy was not unlawful at the time in the relevant jurisdiction,
• It was a purely gestational surrogacy (the egg not provided by the surrogate mother), and
• The surrogate mother has provided her consent to the granting of a Parental Order for Surrogacy.

The process includes safeguards for the protection of the rights and welfare of all parties to a surrogacy arrangement –including the child, the surrogate mother, and the intending parents.

The Government points out that the process of transferring and assigning parentage linked to past surrogacy arrangements will result in the severing of the pre-existing and constitutionally protected legal relationship between the surrogate mother and the child to whom she gave birth.