Will the law catch up with need in Ireland?
The demand for fertility treatment is increasing exponentially. Unfortunately, the law in many countries has failed to keep up. Ireland is no exception.
In Ireland there is no regulatory authority overseeing fertility treatment. Fertility clinics operate under licence granted by the Health Products Regulatory Authority (HPRA) in accordance with the provisions of the EU Tissues Directives as transposed into Irish law. The Medical Council in its Guide to Professional Conduct and Ethics for registered medical practitioners provides limited guidance. The only other form of regulation in Ireland is contained in Parts 2 and 3 of the Children and Family Relationships Act 2015 (CFRA) which commenced on 6 May 2020. This Act regulates donor conception and provides for the assignment of parentage in the case of a child born in Ireland with the use of donated gametes. It contains no provision for surrogacy, which means that single men and same-sex male couples are excluded. Only one clinic in Ireland is currently licensed to provide surrogacy.
In March 2000 the then Minister for Health established a Commission to prepare a report on the ‘possible approaches to the regulation of all aspects of assisted human reproduction and the social, ethical and legal factors to be taken into account in determining public policy in the area’. The Commission reported in 2005. This report recommended that there should be legislation and regulation for the practice of fertility treatment in Ireland. It also recommended, amongst other things, the establishment of a regulatory authority. Twenty-three years later we are still waiting.
In the intervening period, legislative schemes were drawn up but never progressed. Groups consisting primarily of people who have children through surrogacy were established. Their primary aim was to canvass for the establishment of a pathway to parentage for both intending parents through surrogacy and for retrospective recognition of existing parents.
Currently, under Irish law and absent legislation, the birth mother is the mother of the child born through surrogacy. It is possible for the genetic male parent using his own sperm to establish a parental relationship with a child born to him. He can apply to the court for an Order of Declaration of Parentage, and a Guardianship Order. There is no route to parentage for a single mother or for a second intended parent of a child born through surrogacy. This means that the intended mother, whether or not she is genetically related to the child or a second male cannot be recognised as a parent under Irish law.
In January 2022 the Health (Assisted Human Reproduction) Bill 2022 was published. This Bill or draft legislation contains provision for the establishment of the Assisted Human Reproduction Regulatory Authority (AHRRA). It also contains provision for the regulation of fertility treatment including gamete and embryo donation, storage, posthumous gamete and embryo use, pre-implantation genetic diagnosis and domestic surrogacy. In addition, it contains provision for the assignment of parentage surrogacy. The Bill however contains no provision for the establishment of parental relations for both intending parents of a child born through an international surrogacy arrangement. Nor does it contain any provision for the retrospective establishment of a parental relationship in the case of an existing child through surrogacy.
As a result of much pressure on the Government to establish a pathway to parentage for intended parents through international surrogacy and for retrospective establishment of parental relationships, a Joint Oireachtas (Governmental) Committee was established to expeditiously consider and make recommendations on measures to address issues arising from international surrogacy.
The committee was given three months to report. During this period the Committee engaged with doctors, academics, legal experts, surrogates, parents through surrogacy and other stakeholders. They examined international surrogacy including the procedures, regulations and laws in multiple jurisdictions before producing its report, which was published on Wednesday 6 July 2022.
This landmark report containing 31 recommendations on how both intending parents of a child born through surrogacy abroad can establish legal parental relations with their child under Irish law.
During the course of the public hearings of the Committee there was much discussion on the difference between commercial and compensated surrogacy. The draft legislation, which deals with domestic surrogacy only, proposes to prohibit commercial surrogacy. Under the draft legislation, an agreement is commercial if any person, including the parties to the agreement, offers or receives a payment to induce a surrogate to enter into the arrangement. Reimbursement of limited, specified expenses incurred by a surrogate will be permitted. If her expenses are not paid she can seek to enforce that part of the agreement.
The Committee during its deliberations noted that there is an element of commerciality in all surrogacy arrangements, for example payments to agencies, doctors, lawyers, fertility clinics etc. In relation to payments to the surrogate, they formed the view that a surrogate should not be financially disadvantaged by her participation in a surrogacy arrangement. Ultimately the Committee preferred the use of the term ‘when referring to payments to the surrogate recommending that surrogates in international surrogacy arrangements should be fairly and ethically compensated. It is possible that this term will be adopted by the legislator.
The Report recommended that intended parents should reimburse their surrogate for reasonable expenses caused by her pregnancy. The type of expense is broader than in the draft legislation and includes loss of earnings, specific food and supplements, payment for domestic labour when pregnancy precluded her from doing household chores. If payment other than reasonable expenses is permitted in an international arrangement, then it is arguable that such provision should also apply in a domestic surrogacy arrangement. This will require an amendment to the Bill.
The Committee proposes a two-stage process. The first, is preapproval or preregistration of the international surrogacy arrangement with the AHRRA (Recommendation 18) and the second, a court process after the child is born (Recommendation 22). The requirement for preapproval mirrors the provisions for domestic surrogacy arrangements in the draft legislation. I have my concerns about this requirement as it puts an extra burden, both time and financial, on the intended parents. The surrogacy journey is already long enough. The requirement for preapproval puts an extra layer on the process.
Happily, the Committee proposes a retrospective path to obtaining a parental order for both intended parents where a child is born through an international surrogacy arrangement prior to commencement of the legislation. Currently, in Ireland, there are many children who were born through surrogacy who have only one legal parent under Irish law, namely the genetic father. These children are being discriminated against by virtue of the circumstances of their birth.
The report is uplifting and forward-thinking. While accepting that Ireland cannot control what happens in other jurisdictions the reality of international surrogacy is accepted. For the first time, a pathway for the establishment of legal parent-child relations for children born through international surrogacy and both intending parents is proposed. The report’s findings represent a new and positive departure in considering surrogacy arrangements not only in Ireland but globally. The big wish is that the draft legislation will be amended to include provision for the establishment of legal parent/child relations arising out of international surrogacy arrangements going forward and for the retrospective establishment of parentage for the second intended parent of existing children through surrogacy.
Will Ireland be the first country to legislate for international surrogacy or will this just be another report to add to the pile?