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Opinion 'Surrogacy proposals would make process costly, time consuming and frustrating'

It seems like Irish policy-makers are in fact trying to discourage domestic surrogacy, writes Dr Brian Tobin.

THE GENERAL SCHEME of the Assisted Human Reproduction Bill was recently published. Part 6 provides for the regulation of altruistic surrogacy arrangements in Ireland.

However, the proposals contained in Part 6 are so complex that one might be forgiven for thinking that Irish policy-makers are in fact trying to discourage domestic surrogacy.

Setting up a Regulatory Authority

The General Scheme provides for the setting up of an Assisted Human Reproduction (AHR) Regulatory Authority that must, among its many functions, approve a surrogacy agreement before any treatment in a clinic will be permitted. This regulatory oversight might help to assuage the fears of those who are uncomfortable with surrogacy being practiced in Ireland.

Indeed, in 2013 a nationally representative sample survey carried out by the Royal College of Surgeons in Ireland found that only 52% of those surveyed were in favour of surrogacy.

However, the surrogacy agreement will be a costly venture for the intending parents (the couple that commissions the arrangement) even before its submission to the Regulatory Authority for approval, as their chosen surrogate must undergo a medical and psychological assessment in order to be approved to act as a surrogate and to comply with Part 6.

Medical and legal expenses

The General Scheme also requires the surrogate and her husband, if any, to receive independent legal advice on the surrogacy agreement. These medical and legal costs are unlikely to be borne by the surrogate; instead, they will probably form part of the “reasonable expenses” agreed between the parties as part of the surrogacy agreement. Such expenses are permitted under the General Scheme.

These initial costs might not deter intending parents from engaging a surrogate in Ireland. However, following these steps, the AHR Regulatory Authority’s “approval” of their surrogacy agreement will really be limited to the approval of treatment, not parentage.

Despite all parties having received independent legal advice and consented to the terms of the surrogacy agreement between them, legal parentage of the child born as a result of the surrogacy arrangement will not be determined at this pre-birth “approval” stage.

Instead, the intending parents must soldier on after permission for treatment has been obtained in the hope that the surrogate will consent to the transfer of legal parentage to them after she gives birth to the child. They will also most likely be contractually liable for all the surrogate’s “reasonable expenses” that are associated with the pregnancy and the birth.

The surrogate will be child’s legal mother

At birth, the surrogate will be the child’s legal mother. The intending parents can only apply to the court seeking a Parental Order that will transfer legal parentage from the surrogate to them six weeks after the birth of the child, and only then if the surrogate consents to this.

Part 6 makes it clear that the parties’ “approved” surrogacy agreement may not be used as evidence of the surrogate’s consent to a Parental Order. However, there is potential relief for intending parents where the surrogate refuses to consent to a Parental Order.

The court can waive the requirement for the surrogate’s consent “for any other reason the court considers to be relevant.” While this offers a potential life-line to intending parents in such an unenviable predicament, it is a broadly drafted provision that leaves far too much to judicial discretion in each particular case.

Regulating gestational surrogacy

The General Scheme only proposes to regulate gestational surrogacy in Ireland, where the surrogate does not use her own genetic material (ova) but instead carries an embryo formed from the genetic material of others.

Thus, it is unclear as to why Part 6 does not propose to settle the issue of parentage in favour of the intending parents at the pre-birth approval stage, especially when one considers that Part 6 requires one of the intending parents to use his or her genetic material in the formation of the embryo and consequently be genetically related to the surrogate-born child.

The proposed regulatory approach is at odds with the pre-birth approval approach adopted in California, New Hampshire, Delaware, and many other US states, and Greece in the EU. In these jurisdictions parentage can be allocated in favour of the intending parents prior to the birth of the child.

Complex, lengthy and time consuming

This provides a greater incentive to intending parents to choose surrogacy as a viable means of assisted reproduction as their parental rights can be established early on in the process. There is less risk involved for intending parents.

Further, with a pre-birth approval of parentage there is no need to apply to the court for a Parental Order post-birth, so there should be less cost involved for intending parents.

The General Scheme creates a complex, hybrid pre-birth and post-birth approval model for surrogacy which, if ultimately enacted, will prove rather costly, lengthy and time consuming, and potentially even frustrating for intending parents if the surrogate’s consent is not forthcoming after the birth of the child.

Rather than facilitating domestic surrogacy arrangements, these muddled proposals might in fact prove far more likely to discourage them.

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

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