---

Parental orders limited to ‘permitted surrogacies’

The Health (Assisted Human Reproduction) Act 2024 was enacted on 2 July, the culmination of over seven years’ consultation and redrafting, beginning with the Assisted Human Reproduction Bill 2017, writes Eithne Reid O’Doherty BL.

A Joint Oireachtas Committee on International Surrogacy was established, and reported in July 2022, making 32 recommendations.

On 12 December 2023, Health Minister Stephen Donnelly approved the proposed Committee Stage Amendments (CSAs) to the bill – including new provisions for the regulation of international surrogacy agreements and the recognition of certain past surrogacy arrangements.

The act prohibits commercial domestic surrogacy, at section 57, and commercial international surrogacy, at section 93.

The definitions of domestic commercial surrogacy and international surrogacy in these sections are identical and are:

• Receives or agrees to receive any payment or other reward in consideration of entering into or giving effect to the agreement,
• Offers, makes or gives, or agrees to offer, make or give, any payment or other reward in consideration of entering into or giving effect to the agreement,
• Receives, makes or gives, or agrees to receive, make or give, any payment or other reward in consideration of facilitating the entering into or giving effect to the agreement.

Section 58 provides for reasonable expenses for the surrogate mother, on which there must be agreement before the embryo is transferred.

Section 94 similarly provides for reasonable expenses for international surrogate mothers, and replicates the domestic provision in section 58.

‘Reasonable expenses’

Reasonable expenses are defined, the definition being identical for domestic and international surrogacies.

A safety-of-children provision is included for both domestic and international surrogacy at sections 54 and 85, respectively.

Part 9 of the act provides for the establishment of the Assisted Human Reproduction Regulatory Authority (AHRRA).

The AHRRA gives prior approval for surrogacies that meet the required statutory criteria and are therefore “permitted” surrogacies.

One of the criteria for a “permitted surrogacy” is that it is not a commercial surrogacy (section 52(1)(c) domestic and section 89(1)(e) international).

Non-biological parent

To obtain a parental order for the non-biological parent, the surrogacy must be a “permitted surrogacy” (section 65 domestic and section 102 international).

To date Irish international surrogacies have been largely commercial surrogacies.

Listed below is the Reuters news agency report (5 April 2023) of international positions on surrogacy arrangements:

• For-profit surrogacy is banned in Canada, Denmark, New Zealand, Brazil, Britain, and Australia, but they allow some form of altruistic surrogacy,
• Bulgaria, France, Germany, Italy, Portugal, Taiwan, and Spain prohibit all forms of surrogacy,
• There is no legislation concerning surrogacy at the federal level in the United States, and some states allow commercial surrogacy arrangements,
• Ukraine was, until the Russian invasion, an international surrogacy hub, involving thousands of babies each year, according to some estimates, many of them taken abroad by foreigners,
• Georgia has also been a popular destination for fertility tourism, though commercial surrogacy is legally available only for heterosexual couples. In June 2023 the government announced a legislative change from 1 January 2024, whereby it would not be available to foreign nationals. This ban had not yet come into effect. Surrogates’ payments have increased substantially over the last two years,
• Commercial surrogacy is also allowed in Russia, though the practice has been criticised by religious groups as commercialising the birth of children and, in December 2022, President Vladimir Putin signed a law barring foreigners from using surrogate mothers.

In Russia an investigation was launched in 2020 after a baby born to a surrogate mother was found dead in an apartment outside Moscow.

On 3 November 2023, the Moscow Times headlined: “Russia Jails 6 for ‘Trafficking’ in First Surrogacy Probe.”

Fertility business ‘back to normal’

Regarding Ukraine, on 12 June 2024 Voice of America (VOA) reported: “The start of the war caused a decline in the number of foreign couples looking for surrogacy in Ukraine, but today, 2.5 years later, business is pretty much back to normal.”

Minister Donnelly has given a commitment that the AHRRA will be operational by early 2025.

No commencement order has yet been made for any part of the act.

It is hoped that there is not a hiatus between the commencement of the substantive sections and the establishment of the authority.

Furthermore, the act is clear: parental orders will only be granted for permitted surrogacies.