Q&A: What are the laws in this State around surrogacy?

There has been much controversy in recent days over comments made during hearings of the Oireachtas Committee on International Surrogacy, but what exactly is the committee considering and why is it contentious?

What are the laws in Ireland around surrogacy?
Surrogacy in Ireland, whether altruistic or commercial, is unregulated. Most surrogacies are undertaken abroad through commercial arrangements, often in Ukraine but also in Canada and the US.

Will this lack of regulation be addressed?
The Oireachtas is considering an Assisted Human Reproduction (AHR) Bill, where it is hoped the area of surrogacy can be legislated for. The area of international commercial surrogacy has proven complex, however, and so the Oireachtas Committee on International Surrogacy was set up and given three months to come up with proposals.

What are the key issues?
There is currently no route to legal parentage for an intending mother, even if she provided the egg to the surrogate. This is because in Irish law motherhood is based on birth rather than genetics. While there is a route to guardianship for parents, this ends at 18.

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There are issues around inheritance, custody and family leave too. Under Irish law, a biological or genetic father can apply for a declaration of parentage, and then guardianship. With the father’s permission, the second parent may apply for guardianship when the child is two years old.

So what does this Bill propose?
The new legislation would set up a regulatory authority in Ireland and domestic surrogacy arrangements would be pre-approved here. A national surrogacy register would be set up so the child would have access to all of their birth information. A post-birth model of recognition would provide for legal parentage. The legislation would allow for altruistic surrogacy but would prohibit commercial surrogacy because of concerns in Government about exploitation.

What does it propose specifically about international surrogacy?
There are no plans in the Bill – at present – for international surrogacy. It is expected that the European Commission will later this year make proposals to ensure parenthood that is established in one member state is recognised in another, because of issues around travel, but this will likely be more about harmonising rules than harmonising laws. The special rapporteur for children Prof Conor O'Mahony has said that, ultimately, the Government cannot bury its head in the sand about international surrogacy and it must be addressed.

Did he have proposals for international surrogacy and the recognition of parentage?
Yes. He has proposed that the High Court, on foot of an application from intending parents, could grant a parental order and orders around nationality and citizenship where certain criteria are met.

Why doesn't the Government just do this?
Officials in the Department of Justice fear that such a system could put undue pressure to recognise international surrogacy arrangements that don't comply with safeguards and requirements. They also fear that recognising commercial surrogacy abroad would be a double standard when they plan to ban it at home.

So what are the options, ultimately?
This is the work of the committee but members have been told of a number of options.

The first is to maintain the status quo.

The second is to bring in legislation to give parental status to intending parents where the surrogacy happened in a country with the same planned requirements as Ireland – that would mean countries that only allow altruistic and non-commercial surrogacies. Given the prevalence of international commercial surrogacy, this option would apply to few people.

The third option is to legislate for parentage in international arrangements where surrogacy happened in countries that are pre-approved by the new AHR regulator. There would have to be a genetic link to one parent, protections for surrogates and access to birth information. The Minister could also set out in regulation what countries provide necessary safeguards.

The fourth option is to reduce the waiting time for guardianship for the second parent.

The fifth option is step adoption, which is unlikely to find favour.

The sixth option is to find some route to parentage for the intending mother, as this does not exist.

Anything else?
Yes. If the Government feels it may be a double standard to recognise international commercial surrogacies while banning it at home, they may have to take another look at the domestic plan. This may conflict with Government policy but in the interests of children, surrogates and intended parents, it is an area that may need closer examination.