No legal framework in place for international surrogacy, committee hears

The failure of proposed new legislation to address the issue of international surrogacy amounts to “keeping our head in the sand,” the special rapporteur for children has warned.

The Oireachtas Committee on International Surrogacy met on Thursday morning and heard concerns from officials in the Department of Health and Department of Justice about regulating for international commercial surrogacy, where women in foreign countries receive payment to have babies for Irish parents.

At present, there are no laws governing surrogacy in Ireland.

A new Bill, the Assisted Human Reproduction Bill, is coming before the Oireachtas this year and will regulate areas such as surrogacy, IVF and other reproductive issues.

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The Government’s special rapporteur for children Conor O’Mahony told the committee that in its current form the proposed law will be contrary to children’s rights.

He said it “only addresses domestic surrogacy arrangements, and makes no provision whatsoever for a legal framework for addressing international surrogacy arrangements.

“Even if domestic surrogacy is regulated, there will always be families who will opt for international arrangements, whether due to the availability of surrogate mothers or other issues.

“The approach proposed in the Bill amounts to keeping our head in the sand”.

He said there is a choice ahead to either allow the current situation to continue without regulation or on the other hand to “grasp the nettle.”

He has recommended that for international surrogacy arrangements, the intending parents should be allowed to apply to the High Court for parentage and parental responsibility, as well as a grant of nationality and citizenship to the child, if certain criteria are met.

Options

In an options paper drawn up by various departments and given to TDs and Senators on the committee, they were warned that the court option recommended by Mr O’Mahony presents “a number of difficulties”.

“It creates the risk of Irish authorities being subject to undue pressure or being left with no real choice in relation to the approval of international surrogacy arrangements that do not comply with safeguards or requirements.”

Head of policy in the Department of Justice Andrew Munro said there had been issues and concerns around commercial surrogacy.

“We have seen some very difficult examples in the past where, to be fair, intending parents were trying to do the right thing . . . a lot of people got exploited by bad actors, where the egg that was purportedly supplied by a purported donor was not the egg. The child given to the intending parents had no genetic link,” Mr Munro said.

“I don’t think that’s any reflection on the intended parents but there were a lot of bad actors in there.”

The dedicated Oireachtas committee was set up to make recommendations on how the law should treat international surrogacy but officials from the Department of Health expressed concern that the progress of the legislation could be delayed by the committee.

Assistant secretary at the Department of Health Muiris O’Connor said the department is “anxious “ to progress the existing legislation.

“The Bill provides a regulatory framework for assisted human reproduction in Ireland, across various treatment types, including IVF, and provides an ethical framework for research on new reproductive technologies,” said O’Connor.

“There are estimated to be in excess of 10,000 IVF cycles and other advanced assisted human reproduction treatments undertaken in this country every year, while, in comparison, it is understood that the number of international surrogacy arrangements involving Irish residents annually is, in relative terms, limited.

“This is not to diminish the importance placed on surrogacy arrangements by intending parents, who are dealing with a range of difficult issues and emotions that arise in the context of infertility problems.

“However, delay in progressing the AHR Bill will directly impact on the patients and the prospective parents involved in the tens of thousands of time-sensitive procedures carried out within this jurisdiction yearly.”

Mr O’Mahony said he would be concerned if measures on surrogacy were separated out away from the Bill currently before the Oireachtas as it would delay matters even further.

“If this was omitted now it would be a huge opportunity missed and one which would have adverse consequences for those involved.”

The Bill will allow for “altruistic” surrogacy in Ireland, but will ban “commercial” surrogacy.