Domestic surrogacy central to Government policy paper

This week, the Government approved a policy paper and legislative proposals on international surrogacy and the recognition of past surrogacy arrangements.

So, what has the interdepartmental group that created the document proposed in relation to the future of international surrogacy?

In order to regulate surrogacy in Ireland, amendments to the Assisted Human Reproduction Bill will be required at committee stage of the legislation.

The AHR bill was created to regulate procedures such as in-vitro fertilisation and technologies like embryo screening as well as domestic surrogacy.

This week's announcement means that early next year, international surrogacy will be inserted into the AHR bill at committee stage, when amendments to the existing legislation are thrashed out.

The policy paper approved by the Government this week will underpin committee stage discussions.

The document, seen by RTÉ News, runs to 49 pages. It leans heavily on the findings and recommendations of the Joint Oireachtas Committee, which examined the issue of International Surrogacy earlier this year.

The policy paper proposes using domestic surrogacy as a "central consideration" for the introduction of international surrogacy.

It suggests a two-step procedure in prospective international surrogacy arrangements.

Firstly, pre-conception approval by a regulatory authority and, secondly, a post-birth court process for the granting of a Parental Order.

This is in line with the dual system proposed for domestic surrogacy under the AHR Bill.

One of the biggest hurdles for the Oireachtas has been the lack of international consensus on international surrogacy. Guidance is slim.

There’s no agreed international legal instrument (unlike adoption where the Hague Conference in Respect of Intercountry Adoption exists and to which Ireland is a party) and there are divergent views on surrogacy.

Commercial surrogacy is prohibited in most countries in Europe.

Legal parentage for intending parents who undertake international surrogacy arrangements is provided for to the extent required by the European Convention on Human Rights.

Many European countries also prohibit altruistic surrogacy.

Despite that prohibition, the policy paper has noted that the former Special Rapporteur on Child Protection, Conor O’Mahony, recommended that domestic surrogacy arrangements be restricted to altruistic surrogacy in the AHR legislation.

This also appears to be the approach of the three Departments - Health, Justice and Children - in relation to international surrogacy; presumably, to appease concerns around commercial surrogacy.

Explicit ban on commercial surrogacy

The AHR Bill explicitly prohibits commercial surrogacy in Ireland.

This follows "rigorous analysis" of commercial surrogacy and concerns relating to the welfare and commodification of the children involved, as well as "the potential risks of coercion and exploitation of vulnerable women to act as surrogate mothers".

To avoid those risks, the interdepartmental group says the surrogate mother must habitually and lawfully reside for at least two years in the country in which the relevant Assisted Human Reproduction treatment is undertaken and, where it is intended, the child will be born.

This is to remove the risk of women being trafficked to various countries for surrogacy.

There will be a "green listing" of countries where the Assisted Human Reproduction Regulatory Authority (AHRRA) have sufficiently strong legal and regulatory systems in place to ensure the safety and welfare of children and that surrogate mothers are protected.

'Green Lists’

The AHRRA would liaise with maintain the 'Green List' or possibly 'Green Lists' of effectively "approved" jurisdictions and/or specific agencies operating in particular jurisdictions.

Just as commercial domestic surrogacy will be prohibited under the AHR bill, it is suggested that international commercial or compensated surrogacy will also be prohibited.

However, the interdepartmental group does not rule out the role of overseas agencies that assist with surrogacy arrangements.

It says international surrogacy legislation should focus on encouraging agencies to act in a fair and ethical manner, rather than seeking to prevent Irish people from accessing their services altogether.

The interdepartmental group cites Canada as an example where relevant legislation explicitly prohibits "acting as" or "payment[s] to" intermediaries as part of its federal Assisted Human Reproduction Act.

However, it notes that in Canada, the activities of surrogacy agencies are "tolerated and not challenged by either federal or provincial authorities", unless an intermediary is the subject of a complaint or complaints of a substantive nature in respect of allegedly failing to complete agreed undertakings or other alleged misconduct.

The paper speculates that "presumably" the regulatory body in Ireland or an Irish court would simply refuse to grant pre-conception authorisation or a Parental Order for Surrogacy in respect of international surrogacy arrangements in Canada involving an intermediary, whose activities are, in legislation, prohibited.

Remuneration

It seems to conclude that responsibility will rest with the regulatory authority and later the courts, to ensure they are satisfied that the level of remuneration received by intermediaries "is not unreasonably excessive and is proportionate to the actual services rendered".

It also notes that the Joint Oireachtas Committee on International Surrogacy said that "surrogacy agencies should be required to itemise all expenses and fees paid by them for any professional services on behalf of the intended parents".

In order to protect the surrogate mother, the document outlines criteria including that she must have previously given birth to a child.

She should also be at least 25 years of age – which is consistent with domestic surrogacy requirements.

It means that if the jurisdiction where a surrogacy takes place permits a woman to be a surrogate from the age of 21, the surrogate mother who is a party to the international surrogacy agreement must be 25 years old.

Similarly, if the jurisdiction permits a woman to be surrogate from 26, the surrogate mother who is a party to the international surrogacy agreement must be at least 26 to ensure compliance with both the "Irish criterion" and the corresponding criteria of the jurisdiction concerned.

Birth quota

An interesting aspect for parents of children already born through surrogacy who wish to expand their families with the same surrogate, is that she can only be a surrogate twice under the proposed policy.

Therefore, if a couple has had a child with a surrogate and they plan to have another baby via that surrogate in a couple of years - which happens - and she becomes a surrogate mother for someone else in the meantime, she cannot be a surrogate again for the couple with whom she has made plans.

The quota is two births in relation to the surrogate mother.

When it comes to children who have already been born through surrogacy, and whose parents are seeking retrospective recognition of parenthood, the interdepartmental group proposes that legislative provision be made in the AHR Bill for a Parental Order procedure in relation to children born through surrogacy, whether domestic or international, before the commencement of the relevant parts of the AHR legislation.

It says clear provision should be made for the consent of the surrogate mother to be obtained and for the legal effects of a Parental Order.

"This would ensure suitable protection for the rights, interests and welfare of children born through surrogacy, surrogate mothers and intending parents," it says.

It also suggests that because the "retrospective" parental order will end the legal parentage under Irish law of the surrogate mother, all applications for such orders should be dealt with by the High Court.

A time limit of three years from commencement of the provision is proposed, which it says could be extended by the court in exceptional circumstances.

What is clear from the policy paper is that the AHR bill - which was already a complex piece of legislation in its own right - will be extensive once international surrogacy is included.

There's no doubt that Covid-19 restrictions, the war in Ukraine and families of children born through surrogacy who lobbied hard for regulation all put pressure on legislators to include international surrogacy into the bill.

Indeed, the Joint Oireachtas Committee which examined the issue was thorough but swift in its consideration of the complex issue, but it stuck to the tight deadline it was given.

Arguably, it did the heavy lifting for the interdepartmental group which was asked to create the policy proposal for Government.

All that work yielded the announcement by ministers on Tuesday, however, much has yet to be done, as consideration of the legislation and the establishment of a Regulatory Authority on International Surrogacy begins.

AHRRA could take years to come to fruition, but it will be key to the oversight and monitoring of international and retrospective surrogacy arrangements.

Indeed, the policy paper concludes that the greatly expanded role envisaged for the AHRRA arising from the implementation of the international surrogacy provisions will lead to a requirement for additional staff and resources in areas such as research, legal advice, data collection and reporting.

"These will clearly lead to increased costs for the running of the AHRRA, which will have to be examined and detailed as part of the preparatory work to set up the organisation within the coming months."

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