Complex surrogacy issues need standalone law

Health minister Stephen Donnelly has said that paid-for global surrogacy raises complex ethical questions concerning intersecting areas of law, and that these require detailed examination. 

Cross-border surrogacy raises issues of parentage, guardianship, citizenship and, potentially, adoption, he said in response to a question from Deputy Denis Naughten (31 May).

The Health (Assisted Human Reproduction) Bill 2022 (AHR) aims to regulate the wide range of practices undertaken in this jurisdiction in private fertility clinics, but does not touch on global surrogacy, he continued.

The minister stated that the work of the Oireachtas joint committee on international surrogacy is ongoing, and he will consider its findings.

However, he said that it was not clear that the AHR Bill was the appropriate vehicle for accommodating any legislative proposals on surrogacy.

The amendment of other relevant legislation on the Statute Book might be more appropriate, he said.

The minister added that it was also not clear whether the committee’s output would focus on legislative recommendations or other types of intervention, if any.

The bill passed the Second Stage in the Dáil on 23 March, and has been referred to the Select Committee on Health for the Third Stage.

The minister said that a robust regulatory framework for AHR should not be delayed.

Any hold-up would adversely affect the public-health provision of IVF and other advanced AHR treatments, he said. 

Legal minefield

Legal academic Dr Brian Tobin has also said that surrogacy is a legal minefield, and that the current Oireachtas committee set-up was a rushed process.

The deputy head of the School of Law in NUI Galway appeared last week before the committee, and spoke about the complexities of any potential legislation for international surrogacy.

“The committee was given just a 12-week time limit. That seems very arbitrary. This is much more complex than a lot of people realised. This is a legal minefield,” he told the Sunday Business Post.

The legal academic said he was concerned that an extremely complex legal issue was now being rushed.

“The pro­cesses elsewhere are taking years. The New Zealand law commission has been doing this since 2019. In the UK, it has been going on since 2017, with a final report due later this year,” he said.

Standalone bill

Dr Tobin said that there should be a standalone surrogacy bill, where both domestic and international surrogacy set-ups could be addressed.

The surrogate mother should maintain a right to object for a defined window after birth, and should have a right to adequate legal advice, he said.

Under the current AHR bill, Ireland would allow for domestic altruistic surrogacy arrangements.

However, an Attorney General issues paper warned of the double standard of banning paid-for surrogacy for women in this jurisdiction, while permitting Irish people to avail of it in poorer countries. 

Dr Tobin said Ireland could alleviate this double standard by changing its approach to domestic surrogacy.

“This ‘altruistic-is-good-and-commercial-is-bad’ distinction doesn’t exist in reality on the ground,” he told the Sunday Business Post.

Most jurisdictions are afraid to go in the direction of regulating compensated surrogacy, he warned.

Senator Mary Seery Keaney responded to the minister’s statement at the start of the committee meeting this morning (2 June). 

“This committee is not charged with writing the legislation – none of us are legislative drafters,” she said.

The committee was charged with making recommendations, she said, and the minister only agreed to pause the AHR bill for 12 weeks.

“That would have been an impossible deadline to meet, which makes me wonder about his true commitment to the outcome of this committee,” she said.

‘Wild, ill-informed statements’

“Perhaps if he informed himself on the actual workings of this committee … rather than making wild, ill-informed statements, he might actually have seen that there is a solution to his ribbon-cutting ambition,” she said.

She added that she was “absolutely confident” that her own party colleagues did not support this attitude. 

Minister Donnelly had been disrespectful and undermined the work of the committee, she claimed.

Committee chair Jennifer Whitmore said that the committee was not tasked with presenting legislation.

“That is the minister’s job, and the Government’s job, to do,” she said.

Genetic connection

The hearing this morning heard from Canadian fertility lawyer Sara Cohen that Canada no longer requires a genetic connection to any child born though surrogacy.

However, a child must legally be the child of a Canadian citizen in whatever jurisdiction the surrogacy deal is made, she added.

This is “wonderful for non-hetero-normative family building,” she said. 

Surrogacy must be legal in the jurisdictions where it is happening, because it is a “mess” if the child is legally the child of the surrogate mother. 

Canada requires that hospital bills are paid in the surrogate’s home country.

“We want the birth certificate from the jurisdiction, and ideally a court order after birth – so not just a pre-birth order in Canada,” she said.

Canada does not recognise pre-birth parentage orders, she added.

The question of citizenship also potentially causes major problems, she added.

Many Canadians had previously travelled to Ukraine where paid-for surrogacy was cheaper than in the US states where it is permitted, she said.

The socio-economic realities are different in certain other jurisdictions, and it is important to keep that in mind when choosing how to oversee international surrogacy, she said.

This is the case in terms of relying on a proper legal framework, and proper steps on the surrogate giving free and informed consent, the lawyer said. 

Cohen added that she would like to see more regulation of the agencies involved in international surrogacy to ensure that they are of a certain standard.

Paying a surrogate is not allowed in Canada, but there is generous reimbursement, she explained.

Licensing of ‘intermediaries’

Surrogacy ‘intermediaries’ should be regulated in a similar manner to adoption agencies with similar licensing and regulations, she suggested.

“They are businesses like any other business,” she said, and most of them are run by former surrogates.

Cohen recommended regulation of these intermediaries in any drafted legislation.

Commissioning parents make several different payments, she added: “To pay an intermediary is a different fee than to reimburse a surrogate,” she explained.

Some intermediaries are paid up front for access to a system to find a surrogate. Some are also paid to organise a ‘profile’ for commissioning parents.

International human-rights obligations in relation to surrogacy must be taken “deadly seriously”, Minister Donnelly also told the Seanad yesterday (1 June).

“Few countries in the western world facilitate international surrogacy, and we understand why,” he said, while addressing the Seanad on women’s health.

“It is because it is complex, not just in respect of what happens in our country, but also what happens abroad. It is complex ethical space, and we are balancing all manner of international human-rights obligations, and obligations to people who live here,” he said.

The AHR bill cannot be paused indefinitely, he commented.