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Opinion: Long-awaited surrogacy laws still won't recognise many parents

Surrogacy still isn’t regulated in Ireland. New rules are on the way but they won’t solve the problem of recognition for couples who previously entered surrogacy arrangements abroad, writes Brian Tobin.

Brian Tobin

INTERNATIONAL SURROGACY ARRANGEMENTS are popular among Irish couples, according to a recent survey involving 90 countries.

The survey carried out by Families through Surrogacy, an international non-profit organisation that provides support to couples and individuals going through this process of assisted human reproduction, concludes that Ireland has the second-highest rate of surrogacy use in the world.

Indeed, the Department of Foreign Affairs reports that 159 babies born to surrogates abroad have entered Ireland with their intended parents via Emergency Travel Certificates in the last decade.

Nonetheless, surrogacy remains unregulated by Irish law – this is why the vast number of Irish couples who want to use surrogacy to conceive must go to the US, Canada, the Ukraine and other jurisdictions where this method of assisted human reproduction is recognised.

In those jurisdictions where surrogacy is regulated, both of the child’s intended parents, ie the couple that commissioned the arrangement, are recognised as his/her legal parents. 

However, this is not so upon their return to Ireland, and proposed surrogacy laws will not alter this.

Under Irish law, provided he is the genetic father, the intended father in an international surrogacy scenario can be recognised as the child’s parent and guardian following a successful court application.

But the intended mother or, in a same-sex relationship the intended co-father, cannot be recognised as the child’s other legal parent and can only be appointed a guardian by the court a minimum of two years after the child’s birth.

The General Scheme of the Assisted Human Reproduction Bill contains long-awaited proposals to regulate surrogacy in Ireland, but it will not change the existing status quo to enable such intended parents (mothers/co-fathers) who chose international surrogacy (or who might choose it in the future) to establish their legal parenthood under Irish law.

Instead, it will only regulate surrogacy arrangements carried out in Ireland.

The General Scheme was drafted by the Department of Health, which has emphasised that the State can only regulate assisted human reproduction activities that occur in Ireland.

This is contrary to the approach adopted by the State under the Children and Family Relationships Act 2015 because that legislation expressly regulates assisted human reproduction activities that occurred outside of the State.

So an intended parent of a child previously conceived via donor sperm in an Irish or foreign clinic can apply to the court to be recognised as a legal parent if he or she is the mother’s spouse, civil or cohabiting partner.

Similarly, the original draft of the 2015 Act would have allowed an intended parent of a child previously born through a surrogacy arrangement, in Ireland or abroad, to apply to the court for recognition as a legal parent.

He or she would have to be the genetic male parent’s spouse, civil or cohabiting partner, and an Irish citizen, or ordinarily resident here.

The surrogate’s consent to the making of the court order would have been necessary.

Interestingly, the surrogacy arrangement could even have been commercial in nature, ie one where the surrogate received a fee.

However, the surrogacy provisions contained in the original draft of the Children and Family Relationships Act 2015 were deleted in their entirety six months before the Act became law.

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As enacted, the 2015 Act regulates donor-assisted human reproduction, but not surrogacy.

Even if the State is wedded to the notion of only regulating domestic surrogacy going forward, it is unfair to penalise those couples who previously availed of international surrogacy at a time when surrogacy was simply not a viable option here in Ireland.

About 68% of all surrogacies for Irish couples are estimated to have taken place in Ukraine.

The State cannot enact legislation that willfully chooses to ignore the intended parents of those Irish children previously born to surrogates abroad.

Any new surrogacy law should at least enable an intended parent of a child previously born to a surrogate abroad to apply to an Irish court for a declaration of legal parenthood.

Before enacting future legislation on surrogacy, the Oireachtas must first look back and reconsider one significant part of the proposals that were scrapped from the original draft of the Children and Family Relationships Act almost five years ago.

Dr Brian Tobin is a lecturer in law at NUI Galway. 

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