Proposed regulations on international surrogacy include legal rights for parents

Regulations on international surrogacy, including legal rights for parents and agreed financial supports for the surrogate mother, have been put forward by TDs and Senators.

Social Democrats TD Jennifer Whitmore, chairwoman of the Special Committee on International Surrogacy, said the issue is complex and sometimes divisive and the safeguarding of children and surrogates are key concerns.

She said the committee hoped its report, which follows three months of hearings, would “provide a robust framework from which international surrogacy can be regulated”.

The committee was established by the Government following pressure from campaigners and legal experts to address the issue as part of forthcoming domestic surrogacy legislation, the Assisted Human Reproduction (AHR) Bill. The members hope their recommendations will be included in the Bill by the Government.

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Surrogacy in Ireland, whether altruistic or commercial, is unregulated. Most surrogacies are undertaken abroad through commercial arrangements, often in Ukraine but also in Canada and the US. At present there is no mechanism in law to allow for the recognition of lifelong legal parent-child relationships for children born through international surrogacy.

There is no route to legal parentage for an intending mother, even if she provided the egg to the surrogate. While there is a route to guardianship for parents, this ends at 18.

The committee has recommended that the intended parents should be able to apply to the courts for a parental order that would give them both full legal rights as parents. It is intended that the process would be fast, perhaps within 21 days once the surrogate signs an affidavit to confirm consent and a DNA test is done given a requirement that be a genetic link with at least one intended parent.

The AHR Bill would set up a regulatory authority in Ireland for domestic surrogacy arrangements including a national surrogacy register. The legislation would allow for altruistic surrogacy but would prohibit commercial surrogacy because of concerns in Government about exploitation.

Under the committee’s proposals no surrogacy arrangements should be entered into in a country that prohibits surrogacy. The surrogate should receive independent legal advice, medical advice and counselling before the surrogacy and this would be paid for by the intended parents.

There would be a written agreement and, the committee says, the surrogate should not be financially disadvantaged by her participation in the surrogacy. Intended parents should reimburse the surrogate mother for “reasonable expenses” caused by the pregnancy, including loss of earnings and the cost of domestic labour the surrogate is precluded from doing.

Ms Whitmore said this “actually aligns very closely with the AHR Bill” as, though it covers altruistic surrogacy, it “does allow for compensated reasonable costs”.

Asked about indications from Minister for Health Stephen Donnelly and his officials that it may not be possible to include international surrogacy in the AHR Bill, Ms Whitmore said she would be pressing for them to include it as it would be a “missed opportunity” not to do so.

Campaigners seeking the regulation of international surrogacy held a demonstration outside Leinster House on Wednesday calling for children born through surrogacy to no longer be denied a legal relationship with both of their parents.

‘Unbalanced’

Independent Senator Sharon Keogan, a committee member who previously outlined her opposition to surrogacy arguing it is “harmful” and “exploitative”, said at the launch that the report is “unbalanced”. She said potential witnesses with dissenting views were excluded from hearings, which other members said was not true.

In a statement setting out her views, Ms Keogan said there is a power imbalance between the “commissioning parent and the surrogate” and described the intending parent as “the purchaser”. This prompted criticism from members of the audience and Fine Gael Senator Mary Seery Kearney, who said the view was “outrageous”.

Ms Keogan went on to say that “commercial surrogacy is a practice which violates the rights of women and children and much more thorough examination of the issue than that proposed here this morning should be recommended”.

Ms Whitmore denied the committee was unbalanced or biased, saying it invited experts in the areas of human rights, children’s rights and the law, as well as academics, families that experienced international surrogacy, and surrogates themselves.

She said the committee did not invite “people who are very loud and very opinionated with very little facts to actually back up their opinions”.