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Liberal surrogacy law could be ‘ethically questionable’

Dr Andrea Mulligan of TCD School of Law, has said that surrogacy is an exceptionally complex issue with unique ethical challenges.

Done wrongly, it can be deeply problematic, for the child, for the surrogate, and for the intended parents, she told the Oireachtas Joint Committee on International Surrogacy (7 April).

“Regulating international surrogacy is even more complex. Virtually all jurisdictions struggle with it,” she added. 

“There is no single legal regime that can simply be cut and pasted into Irish law,” she said.

The challenge with regulating international surrogacy is with ensuring the fundamentals of Irish law are not undermined, she said. 

“The difficulty is that when domestic courts encounter international surrogacy they are effectively presented with a ‘done deal’, the child is already living with the intended parents and remaining with them is almost always in the child’s best interest, even if the underlying surrogacy arrangement was problematic,” she said.

Very few domestic surrogacy arrangements are taking place in Ireland, she said, and almost all global arrangements are commercial in nature.

All surrogacy – including non-commercial surrogacy – is illegal in France yet the State has been found to have obligations to children born through international surrogacy.

Strict approach

A strict approach would only recognise international surrogacy arrangements which would be lawful if carried out in Ireland and would have the advantage of maintaining principled consistency between the domestic and international regimes.

A moderate approach would recognise some international surrogacy arrangements so long as certain core requirements of non-exploitation and protection of the child’s right to identity, are met.

A liberal approach would allow wide discretion to recognise parental status in surrogacy arrangements, subject to recognition being in the best interests of the child.

However, this risks seriously undermining the domestic regime, as it could entail recognising parentage in surrogacy arrangements that are ethically questionable, the TCD academic told the committee.

Medically safer

Professor Mary Wingfield, clinical director at the Merrion Fertility Clinic, said that domestic surrogacy should be promoted and facilitated because it is medically safer than international surrogacy.

It is also legally and ethically less complex, Prof Wingfield told the Oireachtas Joint Committee on International Surrogacy.

Dr Wingfield added that the legislation should not be rushed.

“AHR is extremely complex. There are several non-surrogacy aspects of the AHR 2022 Bill that concern me and my colleagues,” she said.

Public funding of IVF is not dependent on this legislation, she pointed out.

There is no reference to funding in the proposed AHR Bill and monies will not be part of the remit of the suggested regulatory authority.

“For years, the State has been funding sperm and egg freezing (AHR treatments) for cancer patients and also all the drugs for all IVF, despite the lack of legislation,” she said. 

The medic added that at least 15 changes to the Assisted Human Reproduction Bill (AHR Bill) of 2022 are needed, including:

• Legal parentage should be assigned to the intending parent/s at birth, in a pre-birth parental order,
• This would be attractive to the intending parents and also protect the surrogate mother especially in the case of babies born with medical problems,
• The requirement for one gamete to come from an intending parent should be removed because it is not consistent with allowing parentage for adoption and for cases of embryo donation and double sperm and egg donation for people who do not have a genetic connection to their child but do not require surrogacy,
• An upper age limit should be specified for surrogates, and an uncomplicated medical history required,
• While advertising should not be allowed, clinics should be permitted to flag that they are willing to consider surrogacy arrangements,
• Men should be allowed to use frozen eggs and embryos posthumously in the case of the death of a partner with whom they had a prior parental project, if she had consented prior to death.

Graded process

Dr Wingfield said that she was impressed by the suggestion of a graded process whereby parentage in a domestic situation is straightforward and easily obtained, and that there is a more complex and stringent process for international surrogacy cases. 

Clarification is needed that fertility clinics will be allowed to ship eggs or embryos overseas, she added.