Sarah Harte: The murky international surrogacy racket needs to be spotlighted

We must reconcile an adult's desire to have children with the rights of those children or we risk repeating mistakes of the past

Kim Kardashian used a surrogate to carry her third and fourth children, Chicago and Psalm.

I watched the movie Private Life at the weekend, a brilliant film on Netflix about the complications of assisted parenthood. Rachel and Richard, played by Kathryn Hahn and Paul Giamatti, are desperate to have a much-longed-for child. 

This poignant, sometimes hilarious comedy drama makes astute yet non-judgmental observations about the deep biological urge to have a child and the lengths to which a couple failing at expensive $10,000- a-pop IVF may go.

Rachel and Richard enlist the services of Richard’s stepniece, Sadie, a floundering college dropout who agrees to act as an egg donor, but lacks the emotional maturity to understand the implications of this decision.

The film is particularly good on the ethics of the fertility industry, which may profit from people desperate to have a baby. It also subtly raises points about the quagmire of ethical issues around egg donation and, in an indirect way, surrogacy, which is back in the news here.

This month, health minister Jennifer Carroll MacNeill announced in the Dáil that there is no fixed timeline for the commencement of the Assisted Reproduction Act (AHR), due to concerns of a clash between the act and an EU Directive aimed at preventing human trafficking involving surrogacy which must be transposed into Irish law by 2026.

The act was passed in 2023 but has not yet come into force. 

This will be incredibly disappointing to surrogacy campaigners and to parents of around 1,000 children, neither of whom has legal rights to their children until legislation retrospectively amends the situation

The lack of legislation affects children regarding birth registration, citizenship entitlements, and access to health care. Apparently, a new piece of legislation is being worked on to take account of the EU directive, and it is clear to me that there is still much to work out due to inconsistencies and deficits in the AHR.

The Irish Human Rights and Equality Commission has expressed concerns about the “highly unusual” approach taken by Irish legislators to commercial global surrogacy. Many European countries have a complete ban on surrogacy.

Surrogacy allows either a couple or an individual to have a child using a surrogate mother who agrees to carry a child to term with the intention that the intended parents (or parent) become the legal parents after the child is born.

The medical possibilities vary depending on whether a surrogate carries the baby to full gestation using the couple’s sperm and ova, the surrogate donates the ova, and the biological father’s sperm is used, or both donor ova and donor sperm are used, with the surrogate carrying the child.

In many ways, the law, which is by its nature slow to develop, has not kept pace with lightning speed changes in medical and reproductive advances and perhaps social attitudes.

In a 2014 case, the then Chief Justice Susan Denham said nothing in the Constitution prevented the Oireachtas from legislating for surrogacy. She noted that surrogacy laws “affect the status and rights of persons, especially those of the children.” 

We are obliged to protect Irish children’s rights under the United Nations Convention on the Rights of the Child (UNCRC), which includes guaranteeing rights to all without discrimination of any kind. This affects the 1000 children with a right to identity from birth, which arguably includes the interpretation of the right to your birth family.

Last year, the Office of the Ombudsman for Children asked legislators to incorporate the ‘best interest of the child’ principles into the act to avoid sidelining children’s rights. Unfortunately, this has not happened.

Whether it’s a human right to have a child is a thorny question. It’s not an explicitly named right. Yet, even if it is like all rights, it can be curtailed and limited by other rights. Culturally, we’ve evolved from seeing children as property whom we can raise as we wish to viewing them as independent beings within their own set of distinct rights.

With the current lack of legislation, some Irish children are effectively legally left stateless and parentless, with the intended parents often seen as legal strangers to their children. This is to nobody’s benefit

 Imagine a situation where a child was hospitalised, then the intended parents would not be legally entitled or able to give medical consent for a life-saving procedure or care.

Surrogacy, however, is a highly complex area both legally and ethically. Under the new act, an Assisted Human Reproduction Regulatory Authority is proposed to be established, which will regulate a wide range of complex reproductive practices within Ireland and potentially surrogacy and donor-assisted decisions undertaken in other jurisdictions.

One of the functions presumably of the authority would be to ensure that Irish couples or individuals do not become involved even indirectly in surrogacy arrangements involving human trafficking, which is key when an increasing number of Irish people are availing of surrogacy arrangements abroad, in countries such as Ukraine and India.

It’s evident that we need to set up a functioning framework as quickly as possible for properly regulated legal arrangements. Currently, most commercial surrogacy remains unregulated, underregulated or wrongly regulated, and it’s always better to face up to reality.

Concerns around surrogacy at the EU level, with a widened EU Directive introducing new penalties next year for those who participate in the exploitation of surrogacy, centre on the vast potential for the exploitation of poorer women as surrogates as well as the commodification and trafficking of children.

As in many countries, you cannot pay for surrogacy in Ireland beyond a surrogate’s reasonable expenses, but the new AHR, when it comes into force, will allow Irish parents to engage in commercial surrogacy abroad, provided they do so within the terms of the Act.

First, there seems to be an ideological lack of cohesion here. Why should commercial surrogacy be domestically prohibited while allowing Irish couples to engage in commercial international surrogacy?

 It reminds me of the Irish solution to the Irish problem approach we once took to abortion. We had no abortion here, but we turned a blind eye to the thousands of women forced to go abroad for an abortion. It was a deep-seated form of hypocrisy.

Secondly, if you drill into the details, while commercial surrogacy is allowed abroad under the act, only reasonable expenses to the surrogates are permitted, although many other payments are permissible, including payments of intermediaries' fees, which I would have thought is potentially red-flag territory where trafficking and exploitation are concerned.

The categorisation of surrogacy as either ‘altruistic’ or ‘commercial’ is interesting. Often, only the surrogate is expected to act altruistically, while doctors and lawyers (and presumably shadowy others in some instances) involved in the process can legally be paid. Why should surrogates not be properly compensated?

Naturally, altruistic surrogacy is often something by another name, in that altruism is a façade with actual compensation concealed within ‘reasonable expenses.’ But how on earth are you protecting a surrogate by making it a criminal offence for her to accept more than reasonable expenses, while other professionals and third-party intermediaries involved in the chain between intended parents and surrogate can profit handsomely? I would have thought regulating these parties was precisely where the focus should be.

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One stomach-churning development has been high-profile, vastly wealthy celebrities turning to surrogacy, like Kim Kardashian, who effectively rented another woman’s womb.

We live in a crazy world where, increasingly, the rich can buy anything they want. Outsourcing gestation requires careful legal and ethical consideration if we are to avoid a scenario like The Handmaid’s Tale.

Children’s rights should be paramount in this debate, and that includes the 1000 children effectively in legal limbo. However, the murky international surrogacy racket needs to be spotlighted so that poor women are not used and abused, and children are not bought and sold.