Husband Sues for Cost of Surrogacy
According to recent media reports on the ongoing litigation arising out of the cervical smear scandal, the husband of a woman who died from cervical cancer included in his claim the cost of becoming a father through surrogacy in the USA. He proposes to use frozen embryos which were created prior to his wife becoming ill. While the terms of the settlement have not been publicised, it is reported that it is his intention to use the monies he received by way of settlement to pay the cost of entering into a surrogacy arrangement in the USA.
The irony of this is that there is no legislation in this jurisdiction for surrogacy.
A General Scheme for Assisted Human Reproduction Bill was published in 2017. As yet no actual Bill has yet been drafted. The General Scheme contains no provision for the recognition under Irish Law of the relationship between an intending parent/s and a baby born through an international surrogacy arrangement. While it is proposed to create a framework for limited surrogacy undertaken in Ireland, commercial surrogacy will be prohibited.
It is also proposed to prohibit any person from intentionally providing a technical, professional or medical service that is to facilitate or give effect to a Surrogacy Agreement which is not permitted under the proposed new legislation. By way of explanation this means that it would be an offence for a lawyer to provide legal or practical advice on a professional basis to a person seeking to engage in a surrogacy arrangement abroad and/ or in a commercial surrogacy arrangement.
The Heads of the Bill contains provision for posthumous assisted reproduction, subject to the correct consents being in place. It is proposed that embryos created using the deceased’s and surviving partners gametes can be used by the surviving female partner within a certain timeframe after the partner’s death. It is not however proposed to permit a surviving male partner to use his partners eggs or embryos after her death as such use would, by implication, involve surrogacy.
This begs the question whether there are more men in the same situation as this litigant and if so, how they will fare if this proposed legislation becomes law before they get the opportunity to achieve their dreams.