Giving power of veto to surrogates is surprising.. and wrong

A legal amendment will not seek to rectify a major flaw in new provisions allowing parental orders to be vetoed by surrogates

Remarkably, says Brian Tobin, the policy in the 2024 Act is to allow a gestational surrogate, and not a court, to have the final say over a genetically-unrelated child’s legal parentage. File Picture: Kzenon / Alamy Stock

Last week, the Government approved the General Scheme of the Health (Assisted Human Reproduction) (Amendment) Bill 2024, which will, among other things, amend existing legislation to allow parents of children born through donor-conception procedures that take place abroad to have their parentage recognised under Irish law. 

Current legislation, commenced in 2020, only regulates parentage in donor-conception procedures that take place in Ireland.

However, it is astonishing that the amending legislation will not seek to rectify a significant flaw in the surrogacy provisions in the Health (Assisted Human Reproduction) Act 2024, which was passed in July, but has not yet been commenced. 

As enacted, the 2024 Act provides that the surrogate will be the child’s mother at birth, but she can consent to a Parental Order being made by a court which transfers legal parentage from her to the child’s intended parent(s), the person(s) responsible for initiating the parties’ surrogacy arrangement. 

However, if the surrogate refuses to consent to the Parental Order being made, she will remain the child’s mother and there is nothing the intended parents can do about it. The 2024 Act gives the surrogate a power of veto over the application for a Parental Order. This is true whether the surrogacy is one that takes place in Ireland or abroad, and it makes undertaking a surrogacy journey perilous for Irish intended parents.

This power of veto is surprising, given that the 2024 Act only regulates gestational surrogacy, which means that the surrogate acts as a gestational ‘carrier’ and is not genetically related to the child she gives birth to. Quite remarkably, the policy in the 2024 Act is to allow a gestational surrogate, and not a court, to have the final say over a genetically unrelated child’s legal parentage.

While disputes between surrogates and intended parents regarding the legal parentage of surrogate-born children are quite rare, there have been a number of them in the UK in recent years, where the law pertaining to the surrogate’s consent is virtually identical to what was recently enacted in Ireland.

This has led to intended parents in the UK being denied a Parental Order and, consequently, legal parentage of their genetically-related surrogate-born children by courts utterly powerless to dispense with the surrogate’s arbitrarily withheld consent. 

Indeed, in some cases, intended parents have not even applied to the courts for legal parentage in the first place where the surrogate has informed them that she will not consent to transferring it, because they know there is no point in doing so, as the court’s hands are completely tied. This restrictive law on consent is now replicated in Ireland and will undoubtedly lead to protracted litigation, just as it has done in the UK.

Verona Principles

Further, such a restrictive law is not in accordance with international best practice as suggested by the Verona Principles, a set of international guidelines published in 2021 to advise states on how best to protect the rights of surrogate-born children. The principles suggest that in states where the surrogate is the legal mother of the child at birth and does not consent to transferring legal parentage to the intended parents, a court or ‘other competent authority’ should expeditiously conduct a 'best interests of the child' determination. 

However, a 'best interests of the child' determination will not be possible under Irish law because the 2024 Act provides that a surrogate’s refusal to consent will bring an application for a Parental Order to a halt. 

At least in the UK the Law Commission of England and Wales, and the Scottish Law Commission, recommended in 2023 that their identical, problematic law relating to the surrogate’s consent should be reformed to enable the court to dispense with the need for her consent where it is satisfied that the welfare of the child requires this. 

The court would then be enabled to make the Parental Order transferring legal parentage to the child’s intended parents. If enacted, this child-centred law reform recommendation will bring the law in the UK in line with international surrogacy-related best practice as suggested by the Verona Principles.

Indeed, children’s rights are expressly protected in Article 42A of the Constitution and, therefore, the approach to the surrogate’s consent in the 2024 Act, so disproportionately favourable to gestational surrogates, must be of doubtful constitutional validity when one considers the ‘natural and imprescriptible’ constitutional rights of the surrogate-born child. 

Surely these rights include a right to a legal parent-child relationship and ‘family life’ with both of its intended parents, where this is in the child’s best interests? 

What’s more, the intended parents will in many cases be married, genetic parents and could argue in any dispute as to legal parentage arising between they and the gestational surrogate that the current legislative approach to the surrogate’s consent is an abdication of the State’s pledge to protect ‘The Family’ in Article 41? 

As far back as 2014, the Supreme Court cautioned that the Oireachtas should legislate for surrogacy ‘within constitutional bounds’.

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Given the constitutionally questionable approach to legal parentage in surrogacy arrangements that the 2024 Act has adopted (not to mention that the approach is not in sync with suggested international best practice or recent law reform recommendations from a jurisdiction with an identical, equally problematic law) it is imperative that the amending legislation, the General Scheme of the Health (Assisted Human Reproduction) (Amendment) Bill 2024, proposes to adequately remedy the situation before the 2024 Act is commenced. 

After all, in the context of an adoption, legislation allows the High Court to dispense with the need for the mother’s consent where she fails, neglects or refuses to consent to the making of the Adoption Order. If legislation can allow a birth mother’s consent to an adoption to be dispensed with, surely it should allow a genetically-unrelated gestational surrogate’s consent to be dispensed with on the same grounds? 

In this amending legislation, ministers Donnelly, McEntee and O’Gorman need to put Ireland’s surrogate-born children first.

• Dr Brian Tobin, Associate Professor of Law, School of Law, University of Galway.