Brian Tobin: Ireland’s approach to surrogacy law needs a rebirth

Ireland should follow a similar path to the UK's ongoing collaborative, robust reform process
Brian Tobin: Ireland’s approach to surrogacy law needs a rebirth

A nurse takes care of babies born to surrogate mothers at a surrogate operation in Kyiv, Ukraine. Picture: Efrem Lukatsky/AP

On Monday, April 26,  the British All-Party Parliamentary Group on Surrogacy published its report on the understandings of the law and practice of surrogacy, in which it recommends reform. 

Along with other experts, I had the pleasure of feeding into this law reform process during oral evidence sessions at Westminster in 2018.

Simultaneous to this process, the Law Commission of England and Wales and the Scottish Law Commission have been engaged in a joint surrogacy law reform project since 2018.

In 2019, the two law commissions published a detailed consultation paper, Building Families through Surrogacy: A New Law

In preparing this document, the law commissions engaged with representatives from the Department of Health and Social Care (DHSC), relevant government departments, and NGOs in the UK. 

They also had discussions with many academics, practitioners, and relevant stakeholders. 

Following the publication of the consultation paper, the law commissions invited a broad range of stakeholders and other interested parties to respond to its recommendations for law reform.

The law commissions aim to publish a report in 2022 that will contain recommendations to reform the law on surrogacy in the UK, alongside a draft standalone Surrogacy Bill for consideration by the British government.

If only the Irish approach to introducing our first surrogacy laws was as well-conceived.

The first legislative proposals to regulate surrogacy in Ireland were deleted from the Children and Family Relationships Bill back in 2014.

Although a draft Assisted Human Reproduction Bill was published in October 2017, and Part 6 proposes to regulate surrogacy, this appears to be stuck in ‘development hell’ ever since.

This draft bill only proposes to prospectively regulate not-for-profit surrogacy arrangements carried out in Ireland.

International arrangements

Despite the fact that many Irish couples avail of surrogacy in Canada, the US, and Ukraine, the draft bill fails to grapple with the complex issue of international surrogacy arrangements.

In 2018-2019, the Joint Committee on Health carried out a rather light-touch form of pre-legislative scrutiny on this draft bill, which had been drafted by the Department of Health.

There were only four oral hearings held over a period of 13 months, despite the fact that, in addition to surrogacy, the draft legislation covers a wealth of complex assisted human reproduction issues such as gamete and embryo donation, posthumous assisted reproduction, pre-implantation genetic diagnosis, and the establishment of an assisted human reproduction regulatory authority to provide regulatory oversight. 

When they appeared before the committee as part of this pre-legislative scrutiny process, Dr Tony Holohan and other officials from the Department of Health were not questioned by its members as to why international surrogacy arrangements had been excluded from the proposed bill, nor did they volunteer any explanation as to why the draft legislation ignores these arrangements. 

Law not fit for purpose

Although Dr Holohan confirmed that the Department of Health engaged with the Office of the Attorney General while drafting the proposed bill, the department nonetheless frustrated a whole range of relevant stakeholders by failing to engage with them in any meaningful sense, and by devising a surrogacy law that many such stakeholders feel is simply not fit for purpose.

More recently, a welcome addition to the literature and law reform recommendations came in the form of the Special Rapporteur on Child Protection’s review of children’s rights and best interests in the context of donor-assisted human reproduction and surrogacy.

While that document, published in 2020, does make recommendations for the legal regulation of international surrogacy arrangements, it must be borne in mind that recognising the parentage of children born via such arrangements under Irish law is far from a simple matter. 

Countries that regulate surrogacy can differ remarkably and most children born to Irish parents via international surrogacy are born in countries that permit commercial surrogacy. 

In a significant number of these countries there is a correlation between the exploitation of women and commercial surrogacy arrangements. 

Indeed, the law commissions in the UK noted in their consultation paper that there have been concerning reports about the treatment of surrogates in Ukraine, a commercial surrogacy destination that is hugely popular with Irish couples.

The organisation Families through Surrogacy estimates that 68% of all Irish surrogacies take place there. 

Although these are significant ethical concerns, the special rapporteur’s recommendations to regulate the parentage of children who are born through international surrogacy arrangements are satisfying from a child-centric perspective. 

After all, the State cannot bury its head in the sand — a fair, pragmatic solution to this legal and ethical dilemma must be actively pursued. This is why regard should be had to the more considered surrogacy law reform process in the UK.

Collaborative reform

In light of the ongoing, collaborative, robust surrogacy law reform process in the UK, Ireland should now consider a similar process.

The surrogacy proposals in the draft Assisted Human Reproduction Bill should be deleted before that legislation proceeds any further if that legislation proceeds any further at all. 

Consideration should be given to formulating a new, standalone Surrogacy Bill for Ireland, which could result from the input of, among others, the Special Rapporteur, the Department of Health, the Office of the Attorney General, and proper engagement by the State with all relevant stakeholders.

The State should also take heed of the ‘Verona Principles’ for the Protection of the Rights of the Child born through Surrogacy which were published in February 2021 and endorsed by the UN Committee on the Rights of the Child as an important contribution to developing international guidance for the protection of the rights of children born through surrogacy. 

There must be greater collaboration between the relevant State bodies/actors, NGOs, academics, and stakeholders, as well as an appreciation of law reform initiatives elsewhere before any legislation purporting to regulate an area as complex as surrogacy is advanced in the Oireachtas.

Dr Brian Tobin is a lecturer in law at the School of Law, NUI Galway

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