The regulation of surrogacy has come under scrutiny in recent months, as the courts have considered this highly emotive and, sometimes, extremely technical process.
Consideration often occurs in the context of attempts to finely balance and protect the human rights of parties to a surrogacy arrangement. As human rights documents often outline the importance of respect for human dignity, one might consider whether the dignity of poorer surrogates is violated when reproductive processes are commoditised.
Surrogates in intra-familial arrangements may also be exploited due to emotional coercion. Commissioning parents are particularly at risk of exploitation when they desperately seek to become parents, yet are provided with scant legal or general information.
The child’s human right to know its identity may also be limited in circumstances where the child has up to six possible parents: the commissioning parents, the genetic parents, the surrogate and her husband.
Sound regulation of surrogacy is imperative when one considers the potential affect on human rights; however, cases continue to be dealt with under statutes that never contemplated this complex issue.
Even in the EU there is no consistency, as in October last, two Advocate Generals of the Court of Justice of the European Union released conflicting Opinions on the same day regarding the "leave entitlements" of women who had children through surrogacy. Additionally, while the February 2012 Guidance Document issued by the Department of Justice and Equality is to be welcomed for providing guidance to couples bringing their child to Ireland following an international surrogacy arrangement, those entering surrogacy arrangements within Ireland do so without any legislative guidance.
In 1996, Judge Murphy in the Supreme Court questioned whether the mother, for the purposes of Article 40 of the Constitution, was "[T]he woman who provided the ovum or the woman who gave birth . . ." – no answer was given. In the "Embryo Case", it was held Article 40.3.3° did not protect the relationship between mothers and frozen embryos as there was no physical connection of pregnancy between the two. Accordingly, the principle of "mater semper certa est" (the mother is always certain) remained steadfast until the High Court recently held the genetic mother should be recognised as the legal mother. This is now under appeal.
If the appeal is successful, genetic parents will likely continue to allege human rights violations. If it is unsuccessful, an increase in cases taken by gestational mothers is possible. Legislation is required if a surge in litigation is to be avoided.
The uncertainty may be mitigated by the anticipated Family Relations and Children Bill. This Bill appears to be guided by the 2005 Report of the Commission for Assisted Human Reproduction, which concluded (with one member dissenting) that surrogacy should be permitted, subject to regulation.
A Briefing Note released earlier this month outlined the Bill will provide the court may, on application by any party to a surrogacy case, assign parentage on the basis of genetic connection to one of the intending parents and the spouse, civil partner or cohabiting partner of that person. The surrogate will be the legal mother if she does not assign her rights as a mother. The Bill will further:
– hold surrogacy arrangements unenforceable by or against any person making such an arrangement;
– prohibit payment for surrogacy, the making or facilitating a surrogacy, or advertising of surrogacy arrangements;
– prohibit advertising surrogacy arrangements or procurement of surrogates;
– hold obligations to pay or reimburse surrogacy costs enforceable only if the surrogacy arrangement was made prior to the surrogate conception and if the costs are reasonable; and
– oblige parties to a surrogacy arrangement to obtain legal advice before the arrangement is made.
Although surrogacy remains unregulated, parties to surrogacy agreements need not remain quiescent. When considering the English case of W and B v H (Child) abduction: surrogacy, Mason and Laurie stated “ . . . there is much to be said for the encouragement of non-contractual memoranda of understanding which can be available in the event of later disagreement”. While the legality of surrogacy agreements remains uncertain in Ireland, an appropriately tailored surrogacy agreement could convey the parties’ solemn objectives, should legal proceedings be initiated at a later stage.
In the absence of legislation, notwithstanding the imminent appeal case, an increase in surrogacy litigation is likely. Regulation may come in the form of the Family Relations and Children Bill, which could provide certainty to many. In the meantime, those entering surrogacy arrangements should consider drafting agreements that will express the intentions of parties to each other and to the courts should difficulties arise.