The 2022 Assisted Human Reproduction Bill was published five years after the heads of bill publication in 2017, the Law Society’s Dr Geoffrey Shannon said yesterday at a UCD Sutherland School of Law conference on public law (14 June).

“It has taken us far too long to provide the legislative framework in this area,” he said, introducing speaker Eltin Ryle of Matheson.

Courts should not be used to vindicate rights in this area, he said but the issues engaged are about payment.

“Whenever there is payment, there are always problems, from a child protection perspective, and we need to be alive to that,” the former Rapporteur for Child Protection said.

Lawyer Eltin Ryle said that the draft legislation hasn't really answered all the questions at hand, in a highly sensitive and technical area.

In most areas of law deeper reading allows a lawyer to become more comfortable, but this is not the case with surrogacy, he commented. 

Complex

“The more you read into it, the more complex it gets,” he said.

There is a very real concern about the sale of children, he commented, and this was addressed in 2018 UN report on the sale and sexual exploitation of children.

At the same time, Ireland has a significant number of “well-intentioned” people seeking to engage in family formation.

There is also a significant lack of international consensus on this issue with clashing schools of thought and numerous ethical concerns, he said.

Deals which appear to be altruistic on the surface often have commercial aspects as well which is also causing concerns, the Matheson lawyer said.

Defining altruistic surrogacy versus commercial surrogacy is a difficult question, he said.

The UN report makes for difficult reading in its account of cases where surrogacy has “gone wrong”, the lawyer said.

'Demand-driven system'

It also raises several concerns about a “demand-driven system”.

“There was a demand for foreign adoptions, which led to problems, and there may be concern about in some way replicating this through commercial surrogacy on the international stage,” he said.

The UN report makes clear that there is no "right" to a child under international law, and advocates for very strict obligations on all financial transactions.

“The idea is that, where you have a market that can create a profit, there are more likely to be bad actors in that market,” he said.

The child's right to an identity is key to the whole question of surrogacy he said, both those who are in being and those yet to be born.

Children must not be punished for the circumstances surrounding their birth, the UN report points out.

Stateless

But children can be left stateless if one country has legalized surrogacy and another doesn't, he said.

There are perceived deficiencies with the current draft, he said, primarily relating to the absence of a provision for international surrogacy arrangements, raising concerns of a discriminatory approach.

The child's best interest principle should also be further up the agenda, he said.

The time allowed for dealing with such a sensitive and technical issues is very short, he commented, and there have been calls to slow it down.

“It is very difficult to achieve the appropriate balance for this, he said, and the difficult questions must be asked at this juncture.