Surrogacy and Assisted Human Reproduction in Ireland
Surrogacy and other Assisted Human Reproduction (AHR) practices are on the rise in Ireland. Surrogacy refers to a third-party productive practice in which intending parents contract a surrogate mother to give birth to a child.[1] Many people find themselves in situations where surrogacy becomes an attractive option, whether it be as a result of infertility, a medical condition where pregnancy could endanger life, same sex relations or individual persons wishing to have a child. [2] In the case of surrogacy, the genetic material of one, both or neither of the intending parents may be used to create the embryo. [3] There are also different types of surrogacy: firstly, traditional surrogacy where the surrogate uses her own egg and is therefore genetically connected to the child; and secondly, gestational surrogacy where the egg of the intending mother is used in the process along with a donor sperm or the sperm of the intending father. [4] Therefore, in the latter form of surrogacy, the surrogate is not genetically related to the child.
Currently in Ireland, there is no legislation specific to surrogacy. The Children and Family Relationship Act 2015[5] was introduced to regulate AHR, however surrogacy is not explicitly provided for in the act.[6] The act provides a definition for donor-assisted human reproduction (DAHR) and limits DAHR procedures to those carried out ‘in the state’ [7]Therefore, this means that it only covers procedures performed at a domestic level and not ones performed internationally. This seems to prohibit international surrogacy for Irish citizens. The act also prohibits any financial compensation for DAHR except for those related to reasonable expenses associated with DAHR, for example, travel costs, medical expenses, legal and counselling costs.[8] Although surrogacy is not explicitly provided for in the Act, it can be inferred that the provisions essentially ban commercial domestic or international surrogacy but appears to allow altruistic domestic surrogacy. While the 2015 act provides some guidance and regulation for DAHR practices in Ireland, it falls far short of providing comprehensive and precise legislation on the matter.
One of the most polemic issues with surrogacy is that of the legal parentage of the child. In Ireland, the person who physically gives birth to the child is regarded as the legal mother under law; and so even if there is a genetic relationship between the commissioning parent and the child, they are not seen as their legal parent. This principle was established in the case of R v An t-Ard- Chlaraitheoir[9], in which the decision of the High Court, which had found that the failure to recognise the genetic parents as the children’s legal parents, was overturned by the Supreme Court which state that the issue had not been legislated for and it was not for the Courts to legislate on the issue. Under Irish law, the legal father of the child is the person married to the surrogate mother and if the surrogate is unmarried, then the commission father, if he is genetically connected to the child, can make application to establish parental rights of the child. The intending father must make a number of applications including a declaration of parentage, which requires DNA confirmation. [10] The only way in which a commissioning genetic mother can establish parental rights of the child is through adoption.[11] If the commissioning parents are not genetically related to the child, the most they can apply for is guardianship of the child, which can only be done after two years of caring for the child.[12]
A number of complications can arise as a result of the complexities of legal parentage in relation to surrogate born children. If legal parentage is not established there can be difficulties in consenting to medical procedures for children, applying for passports and legal documents for the child, inheritance rights and tax implications and even enrolling children in school and being able to give necessary consents. An example of this was in the recent case in the High Court where the only legal parent of a surrogate born child was suffering from advanced cancer.[13] The biological and legally recognised parent of the boy had received an advanced cancer diagnosis and so the child would be left virtually as an orphan when the father died as the child’s genetic mother was not recognised as his legal mother. [14] The mother is currently the child’s legal guardian but this would lapse once he turns 18. Serious implications arose during the family’s attempts to construct a will due to the fact that the child was a “legal stranger”[15] to his genetic mother. Their attempts to establish safeguards to protect him financially in the future were almost impossible. The family asked the High Court to declare that the State’s failure to provide retrospective recognition of parentage of surrogate born children amounted to “invidious discrimination”.[16]
Ireland is not the only country which is lacking in regulations and legislation in the area of surrogacy. In fact, there is no international law which covers surrogacy and so, the laws on surrogacy vary substantially from country to country. There are many countries which explicitly ban surrogacy, including France, Germany, Spain, Italy, Austria, Norway, Turkey, Saudi Arabia, China and many more. [17] However, that is not to say that people in these countries do not avail of the practice of surrogacy; Instead, they have to find ways around the ban by going abroad to countries where it is legal. Countries such as India, Thailand, certain states in the US and most obviously, Ukraine, permit surrogacy practices. This practice of going abroad to foreign countries for surrogacy is fraught with complications and problems however, such as issues of consent, restrictions on personal liberty and most commonly issues in relation to legal documents and citizenship on returning to the intending parent’s home country. A case from the Supreme Court in France demonstrated such problems when a French couple to decided to have their child through a surrogate mother in California, where the practice is legal. However, they faced serious obstacles when attempting to transfer the children’s American birth certificates, where they were born, to France and onto the family registry, as surrogacy is illegal in France. After years of uncertainty, as the children were initially denied French nationality, the European Court of Human Rights eventually overturned France’s refusal to recognise the children’s birth certificates. [18]
The current situation in Ukraine is the epitome of the ‘worst –case scenario’ for foreign surrogacy arrangements. Ukraine is one of the rare countries in the world where surrogacy is regulated and authorised by law. More than 2000 children are born through surrogacy in Ukraine every year and the majority of these babies are to intending foreign couples[19]. Due to the Russian invasion of Ukraine, many babies born through surrogacy are being stranded as their intending parents are prevented from collecting them due to the war.[20] One of the largest surrogacy organisations in the country is currently managing over 500 surrogacies, all at different stages of pregnancy.[21] Forty-one babies in its care are stranded in Kyiv and are being sheltered in the basements of hospitals as the city continues to be shelled and bombed.[22] Since the start of the invasion, only nine sets of parents have been able to risk the journey to Kyiv to collect their babies and another five have been able to arrange remote pickups.[23] This situation is nothing short of traumatic as the surrogate mothers, the babies and their intending parents are put in the worst situation imaginable and so it serves to highlight the dangers involved in foreign surrogacy arrangements when people are left with no option within their own countries.
Other countries authorise surrogacy but on the condition that the surrogate mother receives no financial compensation other than for pregnancy related costs, for example medical costs such as hospital care, ultra sounds, any supplements, which may be required, and costs in relation to labour and delivery.[24] This is known as altruistic surrogacy and it is often the practice that the surrogate mother is someone who is close to or related to the intending parents, potentially a sister or friend. Australia, Canada, the United Kingdom, Denmark and Israel are all examples of countries where altruistic surrogacy is permitted. [25] Altruistic surrogacy therefore facilitates the practice of surrogacy while simultaneously circumventing the critical arguments that surrogacy promotes the commodification of children and exploitation of surrogate mothers, as altruistic surrogacy is not a form of commercial arrangement.
In February of this year, the Health (Assisted Human Reproduction) Bill was approved by the Cabinet and so marks the first step towards comprehensive legislation specific to surrogacy in Ireland.[26] The Bill establishes a new AHR regulatory authority, which will be responsible for regulating treatments such as IVF and for licensing and regulating domestic altruistic surrogacy.[27] The new authority will set up a new surrogacy register and it will serve to clarify the position of children born through surrogacy. However, although this Bill marks a step in the right direction for surrogacy laws in Ireland, Part 7 of the Bill provides for the regulation of non-commercial surrogacy arrangements carried out in the State and it has been noted that the proposals contained in this Part are so “complex, restrictive and risk-laden”[28] it essentially amounts to a discouragement of domestic surrogacy. Additionally, the Bill does not remedy the issue of legal parentage for intending or genetic parents. Therefore, the surrogate will remain to be considered the child’s legal mother even under this act and so the intended parents must still apply to the court seeking a parental order that will transfer legal parentage to them, after a minimum of 28 days from the birth. As a result, the surrogate mother could refuse to transfer legal parentage to the intending parents after birth. [29]
In conclusion, while the new Bill marks progress for surrogacy laws in Ireland, it leaves much to be desired in respect of remedying the complexities and inevitable complications which can arise from surrogacy arrangements in the state.
[1] Office of the High Commissioner Human Rights, ‘Surrogacy – Special Rapporteur on the sale and sexual exploitation of children’ (United Nations Human Rights)
https://www.ohchr.org/en/special-procedures/sr-sale-of-children/surrogacy
[2] Karen Tobin and Cliona O’Brien, ‘Surrogacy in Ireland – The Legal Considerations’ (Comyn Kelleher Tobyn, 26 July 2021)
https://www.ckt.ie/news/surrogacy-in-ireland-legally-what-i-need-to-know/
[3] ibid 2.
[4] ibid 2.
[5] Children and Family Relationship Act 2015
[6] Ms. Justice B O ‘Hanlon, K Winder and C O’Reilly, ‘A Snapshot of Surrogacy in Ireland with a Comparative Look at International Practices’ [2020] Irish Judicial Studies Journal Vol 4
https://ijsj.ie/assets/uploads/documents/pdfs/2020-Edition-02/
[7] ibid 5.
[8] ibid 5.
[9] MR v An t-Ard- Chlaraitheoir [2014] 3 IR 533
[10] Karen Tobin and Cliona O’Brien, ‘Surrogacy in Ireland – The Legal Considerations’ (Comyn Kelleher Tobyn, 26 July 2021)
https://www.ckt.ie/news/surrogacy-in-ireland-legally-what-i-need-to-know/
[11] ibid 10.
[12] Ibid 10.
[13] Ellen O’Riordan ‘The only legal parent of child born via surrogacy has advanced cancer’ (Monday & February 2022)
[14] ibid 13.
[15] Ibid 13
[16] ibid 13.
[17] Surrogate.com, ‘Intended Parents - What are the International Surrogacy Laws by Country?’ (2022)
[18] Council of Europe, ‘France recognises family ties of parents of surrogate children’ (Impact of the European Convention on Human Rights)
[19] Stephanie Hegarty and Eleanor Layhe, ‘Impossible choices for surrogate mothers and parents’ (22 March 2022)
https://www.bbc.com/news/world-europe-60824936
[20] ibid 19
[21] ibid 19
[22] ibid 19
[23] ibid 19
[24] Adoption Choices of Colorado, ‘Important Differences Between Compensated and Altruistic Surrogacy’ (8 February 2021).
[25] Global Surrogacy, ‘Surrogacy Countries’.
https://globalsurrogacy.baby/surrogacy-countries/
[26] Paul Cullen, ‘Historic Bill to allow surrogacy to take place in State approved by Cabinet’ (Monday 28 February).
[27] Health (Assisted Human Reproduction) Bill 2022 (Bill 29 of 2022)
[28] Brian Tobin,’Proposed Laws Discourage Surrogacy Arrangements Here’ (Wednesday 16 March 2022) https://www.irishexaminer.com/opinion/commentanalysis/arid-40829528.html
[29] ibid 28.