No easy answers to surrogacy questions
Proposed legislation would ban commercial surrogacy within its jurisdiction
The proposed legislation ensures that a baby to whom a surrogate gives birth would have a genetic relationship with at least one of the intending parents.
While fertility treatment began in the late 1970s, in-vitro fertilisation (IVF) was first provided in Dublin in 1985. Catholic Church teaching (donum vitae) was completely opposed to it.
However, the Institute of Obstetricians and Gynaecologists drew up a set of principles and rules, treatment progressed and the number of clinics offering IVF increased.
In 2000, the minster for health established the Commission on Assisted Human Reproduction. It completed an extensive report in 2005, and made 40 recommendations on all aspects of assisted human reproduction. All except six were unanimous.
State regulation still remained on the back burner until surrogacy came back on the political agenda
However, the moral status of the embryo, preimplantation genetic diagnosis, regenerative medicine, surrogacy and the legal parenthood of children born through surrogacy were divisive.
Not too surprisingly, no legislation followed and this would have left a serious legal void, were it not for our membership of the European Union.
The European Community (Quality and Safety of Human Tissues and Cells) Regulations 2006 were incorporated as a statutory instrument by minister for health Mary Harney in 2006.
These govern all IVF clinics in Ireland. The Irish Clinical Embryologists Association was founded in 1998 to provide high standards of practice in clinical embryology.
State regulation still remained on the back burner until surrogacy came back on the political agenda. The latter followed to an extent from the rights of same-sex male couples to have children, and from the growing number of Irish couples who go abroad to avail of surrogacy services. A number of legal cases put assisted reproduction and surrogacy on the political agenda.
The most notable one was a case of altruistic surrogacy. A generous sister offered to become a gestational/birth mother for her sister and husband, because her sister was medically unable to carry a pregnancy to term.
When the child was born, however, the Register of Births refused to register the child in the name of its biological parents as in Irish law it is the birth mother who is the lawful mother. The matter was appealed and the Supreme Court ruled against the “commissioning couple” on the grounds that there was an irrebuttable presumption attached to being a birth mother – motherhood is always certain.
The court said it was not in a position to make surrogacy law; that was a matter for the Oireachtas.
Irish fertility clinics are concerned that service users and providers would be constrained and their rights to privacy compromised
This led to the Assisted Human Reproduction Bill 2017 – currently working its way through the Oireachtas – which among other measures proposes to outlaw commercial surrogacy of any kind in Ireland.
Instead it proposes permitting altruistic surrogacy in the form of domestic surrogacy. This would be based on an agreement undertaken by a willing surrogate and “intending parents” who are habitually resident here and where the embryo transfer is carried out in a clinic in Ireland.
The baby may be donor conceived, but the egg of the proposed gestational/surrogate/birth mother must not be used in the creation of the embryo, to ensure she has no genetic connection with the baby. This guarantees that the surrogate will be the gestational mother only.
The “intending couple” can supply their respective semen and egg in embryo form, or in case of male-only couples, semen and donated egg of another donor woman – combined into an embryo, which would be then transferred into the gestational surrogate mother.
This proposal ensures that the baby to whom the surrogate gives birth will have a genetic relationship with at least one of the intending parents. This arrangement facilitated the reproductive needs of male couples as under these proposals they would have rights as biological fathers.
It is important to note, under Irish law, the surrogate birth mother has rights, which must be protected. So the legislation puts an emphasis on the need for her to give formal consent to become a surrogate mother and her freedom to withdraw that consent at any stage.
After birth she must again formally consent to the transfer of the baby to the intending parents. The latter then apply to the courts to seek transfer of the baby’s parentage to themselves using a new certificate called a parental order. Until that order is granted, the surrogate remains the legal mother, while the biological father is legally the father.
As proposed the legislation is similar to an adoption model: on reaching 18, children can find out their conception details by consulting the registry of donors. This proposal ensures compliance with the rights of the child but with some hidden secrets.
Irish fertility clinics are concerned that under the AHRAA regulations, service users and providers would be constrained and their rights to privacy compromised.
While the proposed legislation may ban commercial surrogacy within its jurisdiction, it is difficult to know how Irish citizens could be stopped from obtaining surrogacy services available elsewhere. Indeed there are some fears that if the proposed legislation were enacted, it might increase international commercial surrogacy or intimidate parents willing to donate gametes and embryos or seek surrogacy services in Ireland.
Evelyn Mahon is fellow emerita of the school of social work and social policy at TCD