Brian Tobin


Ireland should follow Britain’s lead in surrogacy law reform

The UK is putting considerable effort into changing its laws around surrogacy but what about Ireland? asks Brian Tobin

Ireland should follow Britain’s lead in surrogacy law reform

The UK is putting considerable effort into changing its laws around surrogacy but what about Ireland? asks Brian Tobin

The Law Commission of England and Wales, in conjunction with the Scottish Law Commission, recently published its consultation paper on the reform of surrogacy laws in the UK.

This 500-page document sets out detailed, considered proposals for reform in this area. Stakeholders have been invited to respond to the recommendations contained in the consultation paper by September 27 and, following a review of all the responses, the Law Commission plans to publish a report containing its final recommendations in 2021.

If only such a rigorous law reform process was taking place in Ireland as we limp towards enacting our premier law in the area of surrogacy.

Unlike the Law Commission of England and Wales and the Scottish Law Commission, the Irish Law Reform Commission (LRC) has failed to consider surrogacy and the law in any of its programmes for law reform.

The LRC’s Fifth Programme of Law Reform was also published recently and, to the surprise and disappointment of progressive family lawyers, surrogacy is again nowhere to be found on the LRC’s uninspired reform agenda.

However, under the heading of “Family Law” the LRC does propose to consider subject matter such as, wait for it, proper provision on divorce and the recognition of foreign divorces.

In 2019, it appears that the LRC is a reform-oriented body resolutely inclined to tackle topical family law issues of the 1980s and 1990s.

Despite the LRC’s inertia on the subject, the Oireachtas has forged ahead and made two attempts to enact legislation on surrogacy. In 2014, the first attempt was rightly guillotined by the then minister for justice and equality, Frances Fitzgerald, when the surrogacy provisions were deleted from the Children and Family Relationships Act before it became law.

This was the correct course of action at the time because the provisions were almost identical to the UK’s existing laws on surrogacy — laws that have long-since fallen out of favour — hence why the two Law Commissions there are proposing significant reforms in the area.

The second, ongoing attempt at legislating for surrogacy has been nothing short of farcical — enter Part 6 of the General Scheme of the Assisted Human Reproduction Bill 2017.

This draft legislation reintroduces much of what was contained in the earlier, unsuitable provisions that were scrapped some years previously and therefore it should not be the template for a jurisdiction that is in the enviable position of regulating surrogacy for the first time and has the opportunity to introduce the best possible regulatory model from the outset.

The General Scheme of the Assisted Human Reproduction Bill was published in October 2017 yet the Joint Committee on Health only recently completed pre-legislative scrutiny on it.

The diligence of the committee’s pre-legislative scrutiny process has left much to be desired. There were only four oral hearings and members of the Iona Institute were invited to two.

Further, certain prominent Irish experts in the area were not invited to provide oral testimony. One of the hearings was dominated by a lengthy discussion of the right to knowledge of genetic identity of donor-conceived people.

However, this issue had been settled by the Oireachtas in an earlier piece of legislation — the Children and Family Relationships Act 2015. Further, while some legal and medical experts, representatives of the Iona Institute and an LGBT rights group were heard, the joint committee on health did not engage with women’s rights groups or women who have acted as surrogates during its oral hearings on the matter.

As for the content of the proposed surrogacy law itself, despite claiming that one of its most important objectives is to protect the health and safety of children born through surrogacy, no provision is made to screen potential parents for criminal convictions related to children before allowing them to proceed with the surrogacy, a safeguard that is central to the two Law Commissions’ proposals for reform in the UK

This omission is particularly striking given the “Baby Gammy” case in which the Australian genetic father of twins born to a Thai surrogate was found to have numerous child sex convictions. The case garnered international media attention almost five years ago, but not the attention of Irish policy-makers, it seems.

Given the very robust surrogacy law reform process that has just been kickstarted in the UK, and the two half-hearted attempts at legislating for surrogacy in Ireland to date, instead of proceeding towards its enactment, the Oireachtas should instead abandon Part 6 of the General Scheme of the Assisted Human Reproduction Bill, and await the findings from the Law Commission in our neighbouring jurisdiction.

Maybe then it will be third time lucky and Ireland will get a viable law on surrogacy post-2021?

Brian Tobin, lecturer in law, School of Law, National University of Ireland, Galway visiting researcher, Dickson Poon School of Law, King’s College London

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