The Health (Assisted Human Reproduction) Bill 2022 was recently approved by Cabinet and made available to the public on March 10. Part 7 provides for the regulation of non-commercial surrogacy arrangements made in Ireland. However, the proposals contained in Part 7 are so complex, restrictive and risky that one could be forgiven for thinking that those who drafted the bill are in fact trying to discourage surrogacy arrangements in the country.
The bill provides for the creation of an Assisted Human Reproduction Authority (AHRRA) which must, among its many functions, approve the parties’ surrogacy agreement before any treatment at a fertility clinic is permitted. .
However, the surrogacy agreement will be an expensive undertaking for the intended parents (the couple initiating the surrogacy agreement) even before it is submitted to AHRRA for approval, because among the prenatal “reasonable expenses” that ‘they have to pay on behalf of the surrogate are medical costs, counseling and the provision of independent legal advice regarding the implications of the agreement.
These initial costs might not deter intending parents from engaging in surrogacy in Ireland but, following these steps, AHRRA’s approval of their surrogacy agreement will really be limited to the approval of the treatment, and not to the legal parentage of the child born of the surrogate mother. Although all parties have received independent legal advice and counsel and have freely consented to the terms of the surrogacy agreement, the legal parentage of the child born as a result of the surrogacy will not be determined at this stage.
Shouldn’t the fully informed parties be able to freely consent to a clause in the agreement stipulating that at the birth of the child, the legal parentage belongs automatically to the intended parents?
This would not conflict with the surrogate mother‘s right to manage her pregnancy in the same way as any other woman, as legal parentage would only occur by operation of law at birth. Nevertheless, the bill does not allow for this approach – the intended parents must persevere in the hope that the surrogate will be willing to consent to the transfer of legal parentage by a court after she gives birth to the child. child.
The Bill only proposes to regulate gestational surrogacy in Ireland, although it is clear from a single provision in Part 7, Section 62(3)(a)(ii), that gestational surrogacy , not traditional surrogacy, is regulated. Gestational surrogacy is where the surrogate does not use her own genetic material (eggs), but carries an embryo and gives birth to a child formed from someone else’s genetic material. In a traditional surrogacy agreement, the surrogate mother uses her own eggs and is therefore genetically related to the child born to the surrogate mother. Since only gestational surrogacy is regulated, it is unclear why the bill does not propose to settle the issue of parentage in favor of the intended parents at the stage where AHRRA initially approves the agreement, especially considering that part 7 requires “at least one” of the intended parents must provide gametes (sperm/eggs) and be genetically related to the surrogate child. Thus, in all interiors,
Gestational GPAs, unlike the surrogate, at least one intended parent will be genetically related to the child. Indeed, in many surrogacy arrangements involving intended parents of the opposite sex, both will provide the genetic material that forms the embryo(s).
The surrogate mother will be the legal mother of the child. Nevertheless, at birth, the bill provides that the surrogate mother will be the legal mother. Intended parents can only ask the court for a parental order transferring the legal parentage of the surrogate mother to them at least 28 days after the birth of the child. The surrogate must consent to this transfer of parental rights or she will remain the legal mother of the child, and there seems to be nothing the intended parents can do about it. Part 7 specifies that the consent of the surrogate mother can only be canceled by the court if she is deceased or cannot be found.
This consent requirement is extremely strict compared to the original version of the bill which was published as early as 2017.
In the initial draft, it was provided that the court could waive the requirement of the consent of the surrogate mother to a parental order “for any other reason deemed relevant by the court” which, if retained in the draft law current, would at least have offered a potential lifeline to future parents who might find themselves in this predicament. Indeed, one wonders whether this provision was not intentionally removed from the bill to make domestic surrogacy as risky an endeavor as possible for prospective Irish parents.
In 2014, in the “surrogacy case” of MR v an tArd Chláratheoir, the Supreme Court made it clear that any future legislation regarding surrogacy would be “of questionable constitutional validity” if it prevented children born of surrogate mothers to be part of a constitutional family. . Of course, the only “family” recognized by the Constitution is the married family in Section 41. Thus, allowing a surrogate mother to arbitrarily withhold consent to a parenting order issued by a court in favor of married parents (which whether they are of the same sex or of the opposite sex) without any possibility for the court to dispense with his consent – except in the two extreme circumstances mentioned above – could prove to be a constitutionally invalid aspect of the bill if it is challenged before court by married intending parents.
Further, since children’s rights are expressly protected by Section 42A of the Constitution, a child-centred reason for waiving surrogate consent should be provided in the bill. In the context of adoption, Section 31 of the Adoption Act 2010, as amended, allows the High Court to dispense with the requirement of the birth mother’s consent where she omits, neglects or refuses to consent to the making of an adoption order.
However, before doing so, the High Court must consider the “rights, constitutional or otherwise, of the persons concerned (including the natural and inalienable rights of the child)” of section 42A. One of these “natural and imprescriptible” constitutional rights of the child born by surrogacy could surely be the right to enjoy family life with his intended parents, who are responsible for his birth by initiating the arrangement of surrogacy in the first place? If legislation may permit the consent of a birth mother to an adoption to be dispensed in the manner described above, shouldn’t it similarly permit the consent of a gestational surrogate mother to possibly be dispensed for the same reasons?
Part 7 creates a complex and hybrid model of pre-birth state approval and post-birth parental order for surrogacy arrangements that, if adopted in its current form, could prove frustrating and stressful for the intended parents if the consent of the surrogate mother to a legal transfer of parentage is not forthcoming after the birth of the child.
Although evidence indicates that the vast majority of surrogate mothers do not see themselves as the mother of the child they have brought to expectant parents, this is likely to be of little comfort to expectant parents when they decide whether or not to embark on a path to parenthood. it involves substantial emotional investment, financial investment, various legal processes before and after birth, and some degree of risk regarding the ultimate legal parentage of a surrogate child who will be genetically related to one or both.
The state’s restrictive approach to domestic surrogacy is unlikely to encourage many intended parents to seek surrogacy in Ireland. Many will most likely continue to go to commercial surrogacy jurisdictions where their legal parentage can be recognized at birth.
- Brian Tobin is a lecturer in law at NUI Galway.