Complex surrogacy rules could put families at risk of exploitation

A lack of recognition fails to respect children’s right to family life, which is contrary to the best interests of children and to principles of non-discrimination

Tue, 28 Mar, 2023 - 16:30

Deirdre Madden

The legal rules for establishing parentage of children born through surrogacy in Ireland are complex and unsatisfactory for intending parents and their children.

For an intending father of a child born through surrogacy to gain legal recognition, he must be the genetic father. This entitles him to apply for a declaration of parentage and guardianship under the Status of Children Act 1987.

Guardianship entitles a parent to make important decisions regarding the child’s upbringing, for example, deciding on the child’s education, medical treatment, and where they live. Guardianship ends when the child turns 18.

In the case of the intending mother, the position is more difficult because Irish law provides that the woman who gives birth to the child is the legal mother.

This means that the intending mother, even if her egg was used, cannot apply for a declaration of parentage. She may apply for joint guardianship only if she is married to, in a civil partnership with, or has been cohabiting for at least three years with the child’s father and has shared parental responsibility for the child’s day-to-day care with him for at least two years.

These provisions also apply to the intending second parent in a male same-sex relationship.

This lack of recognition fails to respect children’s right to family life, which is contrary to the best interests of children and to principles of non-discrimination.

It also has serious repercussions in relation to birth certification, passport applications, medical decision-making, childcare, social welfare, education, and inheritance rights.

The new Health (Assisted Human Reproduction) Bill 2022 will put in place a regulatory framework for surrogacy which requires certain conditions to be met, such as: It must be gestational only; the child must have a genetic link to at least one intending parent; and it must be non-commercial, though reasonable expenses incurred by the surrogate may be reimbursed.

There will be a two-step process to enable the intending parents to establish their parentage of the child: Pre-conception approval by a new regulatory authority (AHRRA) and a post-birth court process for granting of a parental order in favour of the intending parents.

This new regulation of domestic surrogacy is certainly welcome, but it will not end the practice of Irish people engaging in surrogacy arrangements in other countries. Following the recommendations of the Joint Committee on International Surrogacy, further provisions will be added to the bill in relation to international surrogacy, which are expected to largely mirror those above.

The Joint Committee also made recommendations for retrospective recognition of international surrogacy arrangements that took place before the introduction of this new legislation. It is hoped that new provisions will also cover this important issue so that existing families who currently live in a legal vacuum can have their parental relationships legally recognised.

While most of these proposals are reasonable and in the best interests of both surrogate and child, applying the same provisions to domestic and international surrogacy arrangements presupposes that they are the same, which is not the case. By limiting payment to surrogates to reimbursement of expenses, it is very likely that only altruistic arrangements with family members or friends with strong pre-existing relationships will take place.

For those who cannot avail of such relationships, their only option remains to seek an international arrangement. It is highly unlikely that they will find a surrogate who will enter an arrangement within the restrictions of the altruistic model proposed by the bill.

The risk is that this will expose the intended parents, surrogates, and ultimately the child to the black market, and thereby to a greater risk of exploitation.