A landmark day for international surrogacy but questions on commercial arrangements remain

Analysis: Proposal for legal framework of parental recognition is a major milestone

The task given to the Government’s Special Committee on International Surrogacy was straightforward and yet deeply complex: find a way to recognise the previously unregulated arrangements and do it in 12 weeks.

At one stage, it looked as though the work of the committee would be derailed by fighting among members, with Senator Sharon Keogan claiming she was the victim of “vicious personal attacks” when she voiced opposition to commercial surrogacy.

Despite the tensions, both in public and behind the scenes over the last three months, the committee has produced a detailed report which has two important recommendations.

The first is that the committee believes international surrogacies should be recognised for the first time through a legal framework.

The second is that this would involve a process that would see the intending parents of the child given full rights through a parental order.

The Oireachtas is currently considering the long-awaited Assisted Human Reproduction Bill, which would regulate for altruistic surrogacies for the first time but would ban commercial surrogacies.

The complicated issue of international surrogacy was left to the special committee to address. One of the reasons why it is so complex is because many such arrangements are commercial in nature.

Briefings from Government sources in recent months indicated that there was no intention to allow international commercial arrangements while banning the same at home.

The special committee has now effectively said that surrogate women abroad should be provided with reasonable expenses — including to cover any loss of earnings — that there should be a pre-birth administrative process, counselling, legal advice and a post-birth recognition through a court-issued parental order.

All of this is, more or less, in line with the Government’s domestic plans. Given this, it is perhaps unsurprising that senior Government sources believe a lot of the committee’s recommendations can be added to the legislation. If they cannot be, a stand-alone piece of legislation has not been ruled out.

Next steps

There are four Government departments who will now be parsing the findings in detail: The Departments of Health, Justice, Children and, to a lesser extent, Foreign Affairs.

Asked about the next steps, a spokesman for the Department of Justice said the “Government agreed last year that the Minister for Health shall have regard to the work of the Special Joint Oireachtas Committee on International Surrogacy as the Health (Assisted Human Reproduction) Bill is introduced and progressed through the Houses of the Oireachtas. Minister McEntee has received the committee’s report and its recommendations are now being examined by officials across the three relevant departments.”

The committee heard from a range of witnesses, including the parents of surrogate children, legal experts and academics. The experts pointed towards the lack of a legal framework for surrogacy and the limbo this left parents and children in. The families outlined how they were legal strangers to their own children.

Currently, while there is a route to guardianship for parents, this ends at 18. This also opens up issues around inheritance, custody and family leave. Therefore, the committee’s recommendation for a legal framework of parental recognition clearly represents a major milestone.

The outstanding question is: if a large amount of international surrogacies are commercial, what will happen to these intending parents, surrogates and children? The committee has called for compensatory arrangements. The exact nature of that compensation will be the key question in the coming weeks.