Ireland is Taking a Modern Regulatory Approach to International Surrogacy and the European Union Should Take Note
Although assisted human reproduction (AHR), or technologies such as IVF and surrogacy, have been practiced in Ireland since 1987, the country remains the only European Union (EU) member state with no law or regulation of AHR practices (1).
This is about to change.
Irish legislators have been working for over five years on the Health AHR Bill 2022, which aims to bring modern regulation to assisted reproductive technologies (ART). The Health AHR Bill will regulate practices including (2):
Gamete and embryo donation for AHR and research
Domestic altruistic surrogacy
Preimplantation genetic testing of embryos
Posthumous assisted human reproduction
Embryo and stem cell research
However, Ireland is taking things a step further with regard to international surrogacy.
Irish lawmakers realistically admit that even with domestic AHR legislation for altruistic surrogacy, there are many intended parents (IPs) who will still travel abroad for their family journeys. They aim to put safeguards in place to ensure that all international surrogacy journeys are conducted ethically and protect all parties, including the children, gestational carriers (GCs), and IPs.
I believe this is an incredible step forward, for Ireland and for Europe in general. Some countries in Europe, such as Italy and Greece, have been backsliding with regard to legislation and ethical practices. I have previously written about the anti-rainbow family laws being enacted by Meloni’s right wing government in Italy (https://www.babymoonfamily.com/original-articles/italy-attacks-surrogacy-rainbow-families or https://medium.com/@babymoonfamily/why-every-lgbtq-person-especially-intended-parents-ips-should-be-furious-at-italy-right-now-cfb8a4382532), as well as the extremely unfortunate corruption and exploitation from a clinic and surrogacy agency in Greece (https://www.babymoonfamily.com/original-articles/greeece-surrogacy-crisis or https://medium.com/@babymoonfamily/the-surrogacy-crisis-in-greece-and-how-the-world-should-respond-d66f53eb0cc5).
Ireland is taking a different approach, and in this article I want to focus on the Final Report of the Joint Committee on International Surrogacy (3), highlighting the positive and perhaps more challenging recommendations that could make it into Ireland’s Health AHR Bill when it becomes final.
Positive Recommendations from the Joint Committee on International Surrogacy
The Final Report of the Joint Committee for International Surrogacy is the product of Irish legislators engaging extensively with academics, legal experts, and stakeholders from various organizations, nationally and internationally, as well as with individuals born through surrogacy and families and GCs who have lived experience of the surrogacy journey.
From this, there are a number of positive recommendations that the Joint Committee proposed for inclusion into the Health AHR Bill:
Parentage: A path for legal parentage for IPs, altering the current practice of mater semper certa est, which states that the woman who gave birth, or the GC, is always the legal mother of the child.
Background for children as they become adults: Children will be able to access information to know their genetic, gestational, and social origins.
Legality of surrogacy: Ensuring surrogacy only takes place in a country where it is legal.
Ethical practices: All parties should give full informed consent, the GC should not be economically disadvantaged, and all parties (GCs and IPs) should have separate and comprehensive medical, psychological, and legal support.
Existing children and families: Recognition through a less onerous legal path for those families who have already formed through international surrogacy arrangements.
Current Irish law makes it impossible for both IPs of a child born through surrogacy — even if the child comes from the IPs egg and sperm — to become legal parents. The best the IPs can hope for is the genetic father being recognized as a parent, and then after caring for the child for 2 years without rights, the other parent (male or female) can apply for guardianship.
Guardianship is not the same as parental rights, as it legally ends when the child is 18 years of age and prevents things like familial inheritance. Also, the situation is even more dire for same sex female couples who use a GC, as in this case, neither IP can become a legal parent…ever.
The Joint Committee recommends that IPs be allowed to become legal parents, through a two-step parental order process requiring legal actions before and after the birth of a child. This would alleviate a great deal of the current emotional and financial strain for IPs, and allow them to do things like take their child to the doctor and be recognized as a parent in every sense of the word. This change would also apply equally to same sex couples of any gender, and it would also be applied retroactively to existing families through surrogacy. However, how this parental order works and some caveats it includes does pose some challenges that I will expand upon in the next section.
I firmly believe that children born through ART should be able to know their background in terms of genetics and gestation. This is why on our current journey, my husband and I are only working with egg donors who are open to being contacted in the future, as well as matching with a GC who is as interested as we are in having a meaningful relationship during and after the pregnancy. This will give us and our child a story that we can share with each other, and give the child a sense of identity they can further investigate and develop as they grow older.
Ireland wants to offer this to children born through international surrogacy, which I applaud, but the path they are proposing does pose some issues, as I will touch on in the next section.
Finally, I believe wholeheartedly in the ethical and well-regulated practice of surrogacy. Ensuring there is no financial, emotional, or other coercion in the process is paramount, and it is very welcomed that the Joint Committee has firm recommendations in place with regard to safeguards not only for the IPs, but the GCs as well. This process is one that should be embarked upon with complete transparency and consent. However, the language around compensation for international surrogacy is vague and leaves arrangements like those in the United States unclear. More on this in the following section.
Challenging Recommendations from the Joint Committee on International Surrogacy
While the Joint Committee’s recommendations do a great deal to make international surrogacy from Ireland more modern, transparent, and ethical, I do believe there are some challenges that could arise with the proposed methodology.
How the Joint Committee proposes to gather information, allow parental recognition, and safeguard genetic and gestational information for children revolves around the formation of the Assisted Human Reproduction Regulatory Authority (AHRRA). This authority will essentially function as the mandatory reviewer and approver of all aspects of an international surrogacy journey. IPs will be required to submit all documentation related to their pre-pregnancy planning, including contracts and financial details with IVF clinics, agencies, egg donors, and GCs. The AHRRA will then have the sole discretion to state whether an international surrogacy journey is acceptable.
I find having one government agency responsible for so much review and possessing so much power with regard to approval concerning. ART is a rapidly evolving field. It will be a herculean task for this one authority to review all documentation from all IPs, from all countries, all the time. I believe this will create delays and strain on IPs pursuing international journeys. Not to mention, what recourse would IPs have if the AHRRA does not approve their journey? How can they appeal this if there is no other authority or body who they can advocate to?
In addition to the AHRRA having sole discretion with regard to all international surrogacy journeys, another challenge requires IPs to share confidential information with regard to their gamete donors, GCs, and agencies with the Irish government to be stored in a National Surrogacy Registrar. In theory, this is proposed so that AHRRA ensures the children have access to this information in the future — a positive aspect that I highlighted in the previous section. In reality, it means that international surrogacy journeys could not utilize anonymous egg donors or GCs, who for one reason or another, do not want their information stored with the Irish government. Even though it is not the journey for my husband and me, some couples may prefer an anonymous egg donor or a GC who does not want a sustained relationship after the pregnancy. This can be done ethically and IPs should be able to have this option. However, the Joint Committee’s proposal would not allow this all.
In addition to personal and medical information, the AHRRA also expects IPs to share costs, expenses, and all details of the IVF clinics and agencies they work with. Again, I applaud this in theory because it works to keep the process ethical and transparent, but I could foresee some businesses, especially in the U.S., being very hesitant to share this confidential financial information with a foreign, public, government agency. This may further limit Irish IPs options for international journeys. The Joint Committee envisions the AHRRA as being a resource for future IPs, given the amount and type of information they plan on collecting. However, I do not believe that a single government agency could possibly keep up with the pace of change in this area in order to provide accurate and useful information to future IPs.
The Joint Committee recommendations are also not clear on exactly what ‘compensation’ is allowed for international journeys. They state that with regard to the GC, all of her legal advice, counseling and medical advice and treatment should be paid for by the IPs. Secondly, any loss of earnings due to being unable to work because of the pregnancy should be compensated for by the IPs. Examples of other pregnancy related expenses could include specific dietary requirements or supplements, or payments to cover domestic labor, which the GC is unable to do such as housework or childcare. However, the recommendations do not mention compensation in terms of direct payment, as is the case with most U.S. journeys. Will this be allowed? If so, is there a threshold for payment?
Lastly, the most concerning aspect with regard to the parental order is with the openness to allowing the GC to change her mind. The recommendation from the Joint Committee states the following:
‘Principle 10 of the Principles for the protection of the rights of the child born through surrogacy (or Verona Principles) sets out that surrogates should also be able to withdraw their consent for the transfer of parental rights following the birth…This hearing should take place at least 7 days afters after the birth, to allow the surrogate a consideration period before confirming her consent by signed affidavit.’
I find it completely unacceptable that the Joint Committee would allow a GC to change their mind and keep the child. This child is not theirs genetically, and they entered into the arrangement with no intention of being the child’s parent. Given this, I believe it would be exceedingly unlikely that any GC would opt to keep the child, but it is concerning that IPs will have to endure this waiting period for the final approval of their parental order. It also undermines the immense amount of work, counseling, and contracts that have gone into the arrangement to bring it to this point. Lastly, if the journey is done in the U.S., where in some states the parental orders are actually done before a child is born through surrogacy, I do not see a legal means by which a GC could change her mind. This makes it even worse, as it could open the door for problematic international legal battles in the future, and that is exactly what this type of legislation should aim to prevent.
The Future for Ireland, the EU, and International Surrogacy
No law is perfect, and I believe that overall, the Joint Committee on International Surrogacy has done an adequate job proposing more modern recommendations to allow for the formation of families through international surrogacy.
However, because of this additional work on international surrogacy, the Health AHR Bill has been delayed by over a year. Even though the Final Report from the Joint Committee was published in July 2022, there has been no significant movement of the bill since that time (4).
This has caused considerable frustration on the part of families who already have or who are planning on embarking on an international journey. One group in particular, Irish Gay Dads (https://irishgaydads.ie/), has been particularly vocal, launching an online campaign entitled No More Delays (5). This moving social media campaign shows current and future queer dads advocating for the rapid approval of this legislation, to validate them as the parents they are or will be (6).
Despite this, Health Minister Stephen Donnelly has said that he cannot give a “definitive timeline” for when legislation which legally recognises the parents of children born through surrogacy as their parents will be enacted (4).
Even though there have been considerable delays, I do believe this is a historic moment for Ireland, the EU, and hopefully the rest of the world with regard to international surrogacy. These journeys will only become more common as more and more LGBTQ+ rainbow families are being formed, and the best way for them to occur is within a well-regulated and ethical framework.
There are issues with the proposed Irish regulation, but it is a huge step in the right direction. Perhaps it can continue to evolve, even after it comes into force, and maybe it could serve as a template for broader EU reforms and regulations. This would help the European Union move away from the right wing, anti-LGBTQ+ family movement and towards a more moderate and understandable approach that values and respects all families and allows their formation by these means.
The EU is a powerful regulatory force across the world with regards to healthcare, technology, and human rights, and so any positive changes within the EU framework could have beneficial impacts for international surrogacy everywhere.
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