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Surrogacy: 'Infertile couples will still have to go abroad to make their dream a reality'

The draconian surrogacy proposals contained in the General Scheme of the Assisted Human Reproduction Bill should be substantially revised before being placed on the statute book, writes Dr Brian Tobin.

Dr Brian Tobin Law lecturer

THE MINISTER FOR Health, Simon Harris, is forcefully encouraging the electorate to vote to repeal the 8th Amendment via his Twitter page. Consequently, the Minister is demonstrating that he empathises with women who need to be able to exercise the right to choose to terminate their pregnancy in Ireland.

However, it is a tremendous shame that the Minister does not similarly empathise with those women, and couples, who want to have and raise a child of their own but are unable to do so without the assistance of a surrogate.

His department has drafted proposals to regulate domestic surrogacy arrangements that are so restrictive that the vast majority of infertile couples who are keen to have a child together will still be forced to leave Ireland and go abroad to countries like the Ukraine, the US and Canada to make their dream of starting a family become a reality.

Anti-surrogacy proposals

Indeed, the proposals contained in Part 6 of the General Scheme of the Assisted Human Reproduction Bill, which is currently undergoing pre-legislative scrutiny, are so anti-surrogacy that one would be forgiven for thinking that the Minister and his department have no empathy at all for intending parents who want to pursue a surrogacy arrangement.

The proposals require the intending parents and the surrogate to submit their surrogacy agreement to the Assisted Human Reproduction Regulatory Authority for that body’s approval to commence treatment in an Irish clinic. While this regulatory oversight might assist with the public’s acceptance of surrogacy as a viable method of assisted reproduction, the regulatory authority’s approval will simply be approval to go ahead with treatment.

Parentage of the surrogate-born child can only be approved in favour of the intending parents by a court order after the birth, and only then if the surrogate consents to this. If the surrogate does not consent to the court order she will remain the child’s legal mother.

The proposals do provide that the surrogate’s consent may be dispensed with by the court, but the clunky wording in Part 6 leaves far too much to judicial discretion in that regard.

Issue of parentage

There are many reasons why it is ludicrous that Part 6 does not propose to settle the issue of parentage in favour of the intending parents before the birth of the child.

First, the proposals require at least one of the intending parents to use his or her genetic material (sperm/ova) in the formation of the embryo and, consequently, that intending parent (or often both parents) will be genetically related to the surrogate-born child. Further, Part 6 only proposes to regulate gestational surrogacy, where the surrogate does not use her own ova in the formation of the embryo but instead carries an embryo formed from the genetic material of others.

Since the gestational surrogate will not be genetically related to the child and one (or both) of the intending parents will be, allowing her to be the legal mother of the child upon birth shows that the proposals favour the rights of the gestational carrier over the rights of a genetic, intending parent, and indeed the child.

Uncertainty and risk

Such proposals will serve to discourage intending parents from pursuing surrogacy in Ireland because of all the uncertainty and risk involved. Intending parents face the uncertainty of not being able to establish their parentage until at least six weeks after the birth of the child as well as the risk of rather costly, lengthy, frustrating court proceedings to seek to have the surrogate’s consent waived if it is not forthcoming.

What’s more, for those intending parents who will continue to choose to go abroad for surrogacy, a mechanism for establishing their parental rights in relation to the surrogate-born child upon their return to Ireland is not included in these restrictive proposals.

This means that the intending mother will never be able to be recognised as her child’s legal mother, even where she has provided the ova used to form the embryo carried by the surrogate.

The intending mother can only be recognised as a guardian of her own child under Irish law a minimum of two years after the child’s birth via the provisions of the Children and Family Relationships Act 2015.

The intending father in an international surrogacy scenario can be recognised as a parent and guardian following a successful court application, but only if he has provided the sperm used in embryo formation and is thus also the genetic father of the surrogate-born child.

While showing respect and empathy for those women who need to terminate a pregnancy, the Minister could simultaneously show compassion for those women, and couples, who need to initiate a pregnancy with assistance.

He could do this by openly supporting surrogacy families and seeking to ensure that the draconian surrogacy proposals contained in the General Scheme of the Assisted Human Reproduction Bill are substantially revised before ever being placed on the statute book.

Dr Brian Tobin is a Lecturer in Law at NUI Galway.

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About the author:

Dr Brian Tobin  / Law lecturer

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