An appraisal of Ireland’s current legislative proposals for regulating domestic surrogacy arrangements

ABSTRACT

This article critiques the complex hybrid model that has been proposed for regulating domestic surrogacy arrangements in Ireland, and the reasons why this model came about. It proposes an alternative model for regulating surrogacy, one that is in operation elsewhere and achieves a better balance between the rights of the surrogate, the intending parents and, most importantly, the surrogate-born child. The proposed establishment of the National Surrogacy Register, its interaction with the Register of Births and the issuing of ‘surrogacy certificates’ is also analysed, and a far less complex means of respecting the surrogate-born child’s right to knowledge of its identity is proposed. The article concludes that Ireland’s current legislative proposals for regulating surrogacy need to be substantially revised before ever being placed on the statute book. In their present form, they are so restrictive that, rather than facilitating domestic surrogacy arrangements, they are far more likely to discourage them.

KEYWORDS:

• Surrogacy
• pre-birth
• post-birth
• hybrid model
• policy
• Ireland

Disclosure statement

No potential conflict of interest was reported by the author

Notes

1. In March 2000 the Commission on Assisted Human Reproduction was established by the then Minister for Health and Children, Micheál Martin. Its role was to examine how assisted human reproduction services, including surrogacy, might be regulated in Ireland. The Report of the Commission on Assisted Human Reproduction was published in 2005. Among its 40 recommendations was a proposal that assisted human reproduction, including surrogacy, should be regulated by a regulatory body established by the Oireachtas.

2. When signed into law by the President on 6 April 2015, Parts 2 and 3 of the Children and Family Relationships Act 2015 purported to regulate, inter alia, parentage in cases of donor-assisted human reproduction (DAHR) other than surrogacy. For an analysis of this recent legislation, see Geoffrey Shannon, Children and Family Relationships Law in Ireland: Practice and Procedure (Dublin: Clarus Press, 2016).

3. MR and Another v An tArd Chláraitheoir [2013] IEHC 91. In this case Abbott J. in the High Court held that in a gestational surrogacy scenario where the ovum and sperm have been provided by the intending parents, the principle of mater semper certa est (mother is always certain) is rebutted and the genetic mother should be registered on the birth certificate as the child’s mother. Although this decision was overturned by the Supreme Court on appeal, it was on the grounds that surrogacy and birth registration were matters for the Oireachtas – see MR v An tArd Chláraitheoir [2014] IESC 60, at [116–118] (Denham CJ)); .

4. Department of Justice and Equality, ‘Minister Fitzgerald publishes General Scheme of Children and Family Relationships Bill’ (Department of Justice and Equality, 2014). Available at: www.justice.ie/en/JELR/Pages/PR14000257 [last accessed 27 May 2018].

5. Department of Justice and Equality, ‘Minister Fitzgerald publishes General Scheme of Children and Family Relationships Bill’ (Department of Justice and Equality, 2014). Available at: www.justice.ie/en/JELR/Pages/PR14000257 [last accessed 27 May 2018].

6. MR v An tArd Chláraitheoir [2014] IESC 60.

7. The Supreme Court did not give the Oireachtas free reign in relation to the regulation of surrogacy because in his judgment Clarke J frequently referred to ‘constitutionally permissible’ legislation: see MR v An tArd Chláraitheoir [2014] IESC 60, at para [8.7] (Clarke J).

8. Oireachtas is the word for Parliament in the Irish language.

9. Head 40 of the General Scheme expressly prohibits commercial surrogacy. However, Head 41 permits the payment of ‘reasonable expenses’ to the gestational surrogate.

10. For a discussion of these models see generally Brian Tobin, ‘Forging a Surrogacy Framework for Ireland: The Constitutionality of the Post-birth Parental Order and Pre-birth Judicial Approval Models of Regulation’ (2017) 29 (2) Child and Family Law Quarterly 133.

11. The intending parents are the couple that commissions the surrogacy arrangement. The General Scheme also allows for there to be a single intending parent in a surrogacy situation: see Head 39 of the General Scheme of the Assisted Human Reproduction Bill 2017.

12. See Head 43 of the General Scheme of the Assisted Human Reproduction Bill 2017.

13. Gestational or ‘carrier’ surrogacy is estimated to account for 95% of surrogacy in the U.S. See further, Diane S. Hinson and Maureen McBrien, ‘Surrogacy across America’ (2011) 34 (2) Family Advocate 32, at p 33. In the U.S., California, New Hampshire, Nevada, Connecticut, Delaware and Maine, have legislated for gestational surrogacy. Greece, Portugal and Israel similarly recognise only gestational surrogacy in their respective AHR legislation.

14. In the U.K., the Surrogacy UK Working Group on Surrogacy Law Reform has however recommended that this requirement should be relaxed: see Horsey, K., Surrogacy in the UK: Myth Busting and Reform – Report of the Surrogacy UK Working Group on Surrogacy Law Reform (Surrogacy UK, 2015) at p 39. Available at: https://www.surrogacyuk.org/Downloads/Surrogacy%20in%20the%20UK%20Report%20FINAL.pdf [last accessed 27 May 2018].

15. Indeed, this author has argued elsewhere that a ‘pre-birth State approval’ model is more likely to be compliant with Articles 41 and 42A of the Constitution: see Brian Tobin, ‘Pre-birth Judicial Approval could be Surrogacy Answer’, Irish Times, Dublin, 21 March 2016, at p 14. Available at: http://www.irishtimes.com/opinion/pre-birth-judicial-approval-model-could-be-the-surrogacy-solution-1.2580783 [last accessed 27 May 2018]. See also Brian Tobin, ‘Forging a Surrogacy Framework for Ireland: The Constitutionality of the Post-birth Parental Order and Pre-birth Judicial Approval Models of Regulation’ (2017) 29 (2) Child and Family Law Quarterly 133; Brian Tobin, ‘A Critique of Re AB (Surrogacy: Consent): Can Ireland learn from the UK Experience?’ (2017) 20 (1) Irish Journal of Family Law 3.

16. See section 54 of the Human Fertilisation and Embryology Act 2008.

17. See Head 48 of the General Scheme of the Assisted Human Reproduction Bill 2017.

18. [2016] EWHC 2643 (Fam). In this case the surrogate and her husband refused to consent to a Parental Order in favour of the intending parents, and there was no possibility for the court to waive their consent as the U.K. Human Fertilisation and Embryology Act 2008 does not make provision for this. For an analysis of this case, see Brian Tobin, ‘A Critique of Re AB (Surrogacy: Consent): Can Ireland learn from the UK Experience?’ (2017) 20 (1) Irish Journal of Family Law 3.

19. See Head 12 of the General Scheme of the Children and Family Relationships Bill 2014. Available at:http://www.justice.ie/en/JELR/General%20Scheme%20of%20a%20Children%20and%20Family%20Relationships%20Bill.pdf/Files/General%20Scheme%20of%20a%20Children%20and%20Family%20Relationships%20Bill.pdf [last accessed 27 May 2018].

20. See section 31 (4) (a) (iv) of the Adoption Act 2010, as amended.

21. However, it is worth noting that Ireland is not alone in favouring a ‘hybrid’ model of surrogacy regulation. In Israel, surrogacy agreements are first approved by a State-appointed committee before treatment takes place, but parentage is only granted to the intended parents via the acquisition of a Parenthood Order from the courts after the birth of the chid: see generally Sharon Shakargy, ‘Israel’ in Katarina Trimmings and Paul Beaumont (eds.), International Surrogacy Arrangements: Legal Regulation at the International Level (London: Bloomsbury, 2013) 231–246.

22. Email from Paul Ivory, Bioethics Unit, Department of Health, to author (16 November 2016).

23. [2014] IESC 60, at para [88]. Emphasis added.

24. [2014] IESC 60, at para [117].

25. Committee debates, Joint Committee on Health 17 January 2018: https://www.oireachtas.ie/en/debates/debate/joint_committee_on_health/2018-01-17/3/ [Last accessed 27 May 2018].

26. Committee debates, Joint Committee on Health 17 January 2018: https://www.oireachtas.ie/en/debates/debate/joint_committee_on_health/2018-01-17/3/ [Last accessed 27 May 2018].

27. Olivia Rudgard, ‘Surrogacy Reform could remove Automatic Rights from Birth Parents’, The Telegraph, 4 May 2018: https://www.telegraph.co.uk/news/2018/05/04/surrogacy-reform-could-remove-automatic-rights-birth-parents/ [Last accessed 12 July 2018].

28. South Africa operates a very similar ‘pre-birth State approval’ model for gestational surrogacy. A surrogacy agreement must be approved by the High Court before any treatment can proceed. Once approved, any child born as a result of the surrogacy agreement is for all purposes regarded as the child of the intended parents from the moment of birth. However, in cases of traditional surrogacy, because the surrogate is the genetic mother of the child, she has the right to terminate the surrogacy agreement up to 60 days after the birth of the child and keep the child. Thus, in cases of traditional surrogacy, the intended parents’ parental rights are technically suspended for this 60-day ‘cooling off’ period, and the surrogate has the right to terminate the agreement and keep the child during this period: see Melodie Slabbert and Christa Roodt, ‘South Africa’, in Katarina Trimmings and Paul Beaumont (eds.), International Surrogacy Arrangements: Legal Regulation at the International Level (London: Bloomsbury, 2013) 325–345.

29. Brian Tobin, ‘Surrogacy Proposals would make Process Costly, Time consuming and Frustrating’, TheJournal.ie. Available at: http://www.thejournal.ie/readme/opinion-surrogacy-proposals-would-make-process-costly-time-consuming-and-frustrating-3666377-Oct2017/ [last accessed 27 May 2018].

30. In the MR & Another v An tArd Chláraitheoir (surrogacy) case, the Supreme Court did caution the Oireachtas in relation to the regulation of surrogacy because, in his judgment, Clarke J frequently referred to ‘constitutionally permissible’ legislation and cautioned that ‘[w]ithin constitutional bounds it is largely a question of policy for the Oireachtas to determine the precise parameters of [surrogacy] regulation.’ (Emphasis added).

31. Garda is the word for police in the Irish language.

32. Indeed, in the Report of the Commission on Assisted Human Reproduction, one of the Commission’s recommendations was that ‘[w]here there is objective evidence of a risk of harm to any child that may be conceived through AHR, there should be a presumption against treatment.’: see Report of the Commission on Assisted Human Reproduction (Department of Health 2005) p.XVI. Available at: https://health.gov.ie/wp-content/uploads/2014/03/Report-of-The-Commission-on-Assisted-Human-Reproduction.pdf [Last accessed 12 July 2018].

33. See ‘Introduction to the General Scheme’ of the Assisted Human Reproduction Bill 2017. Emphasis added. Available at: http://health.gov.ie/blog/publications/general-scheme-of-the-assisted-human-reproduction-bill-2017/ [last accessed 27 May 2018].

34. Brian Tobin, ‘Surrogacy: Infertile Couples will still have to go Abroad to make their Dream a Reality’ TheJournal.ie. Available at: http://www.thejournal.ie/readme/surrogacy-infertile-couples-will-still-have-to-go-abroad-to-make-their-dream-a-reality-4024986-May2018/ [Last accessed 27 May 2018].

35. Guardianship is the Irish equivalent of Parental Responsibility.

36. Noel Baker, ‘Legal Limbo fears for Surrogate Children’, Irish Examiner, 3 November 2016: https://www.irishexaminer.com/ireland/legal-limbo-fears-for-surrogate-children-428739.html [Last accessed 27 May 2018].

37. MR v An tArd Chláraitheoir [2014] IESC 60.