Policies aimed at restricting surrogacy usually ‘counterproductive’, TDs told

Oireachtas committee told Irish regime ‘a step behind’ system operating in UK

Policies aimed at restricting surrogacy practices usually have “counterproductive outcomes”, TDs and Senators have been told.

Two British experts in domestic and international surrogacy appeared before the Oireachtas Joint Committee on International Surrogacy on Wednesday and warned that the issue of ethical surrogacy must be addressed.

The committee has been given three months to make recommendations on the issue of surrogacy.

UK solicitor Natalie Gamble told the committee that she has worked for 15 years with families created through UK and international surrogacy. She said this has involved dealing with around 1,500 families.

“In my long experience, the overwhelming majority of intended parents are conscientious and want to navigate surrogacy in a responsible way,” she said.

“And the overwhelming majority of surrogates make an informed choice to carry a child to help someone else, never intending for that child to be theirs. Research across decades has shown that surrogacy children are thriving, and that what matters to children is not the number or gender of their parents, but the quality of their parental attachments.

“Global surrogacy is a reality. It needs to be managed and not ignored in the hope it will go away. International law increasingly stipulates that children born through surrogacy have a right to recognition...”

Ms Gamble said that understanding ethical surrogacy was a “complex task” which needed a detailed understanding of how surrogacy works as opposed to “simplistic categorisations”.

‘Range of approaches’

“It is naive to paint domestic or altruistic surrogacy as wholly desirable and international or commercial surrogacy as wholly undesirable. There are no such bright lines,” she added. “In truth there are a range of approaches to surrogacy involving good and bad practice everywhere. A far more useful question is what makes surrogacy ethical and how to promote it.”

At present, there are no laws governing surrogacy in Ireland. The Assisted Human Reproduction Bill is coming before the Oireachtas this year and seeks to regulate areas such as surrogacy, IVF and other reproductive issues. The Bill would allow for “altruistic” surrogacy in Ireland, but would ban “commercial” surrogacy.

Initially, UK law treats the surrogate - and if married, her spouse - as the child’s legal parents even if the child is born overseas. However, UK parents can apply to the family court for a post-birth parental order which extinguishes the status of the surrogate and makes them the legal parents.

“Before making a parental order the court must ensure the parents are eligible, scrutinise payments, ensure the surrogate has given free consent, and be content that the order will safeguard the lifelong welfare of the child,” she said.

A step behind

Ms Gamble said Ireland is a “step behind” without any current system for properly recognising children as the legal children of both their parents.

“Automatic recognition would be the most progressive remedy. But failing that, Ireland could adopt post-birth parentage applications, like in the UK, or even pre-birth applications. Whatever the route, legal parenthood must be your first and most urgent priority.”

Dr Kirsty Horsey, a senior research associate at the London Women’s Clinic, said that the interests of the child are of paramount importance in the UK.

“While the current law says that surrogacy that takes place domestically should be ‘altruistic’, parental orders are not limited in this way,” she said. “Intended parents who access international surrogacy, commercial or altruistic, in overseas jurisdictions may still and should apply for a parental order, subject to the requirements laid out in law.

“If the arrangement was commercial, the court has the power to retrospectively authorise any payments made, including to the surrogate, in the best interests of the child, whose interests are the paramount consideration.”

Best interests

She said that building in a mechanism to automatically recognise legal parenthood for intended parents who travel to countries where surrogacy services “protect the best interests of women and children” may help, by “encouraging people to seek out these destinations over less ethically-sound ones.”

The Government’s special rapporteur for children Conor O’Mahony previously told the committee that in its current form the proposed law would be contrary to children’s rights. He said it “only addresses domestic surrogacy arrangements, and makes no provision whatsoever for a legal framework for addressing international surrogacy arrangements”.

“Even if domestic surrogacy is regulated, there will always be families who will opt for international arrangements, whether due to the availability of surrogate mothers or other issues,” he said. “The approach proposed in the Bill amounts to keeping our head in the sand”.

Jennifer Bray

Jennifer Bray

Jennifer Bray is a Political Correspondent with The Irish Times