Explainer: what are the new plans for domestic and international surrogacy arrangements?

Q: What is the current legal status of surrogacies at home and abroad?

A: 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. Minister for Health Stephen Donnelly and other ministers have been working on The Health (Assisted Human Reproduction) Bill 2022 which will encompass a wide range of assisted human reproduction practices, including domestic altruistic surrogacy. The question of international surrogacy was a lot more complicated, and a special committee was set up last year to look at this issue.

Q: What did that committee recommend?

A: Last year, the committee recommended that international surrogacy should be recognised in Ireland for the first time under a system of parental orders and bespoke guidelines. Afterwards, the three relevant Government departments – Health, Justice and Children – considered the committee’s recommendations and this week the plans were brought to Cabinet. It is important to note that the Government does not intend to legislate for commercial surrogacies.

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[ Ministers approve plans to recognise international surrogacy for first time ]

Q: What happened at Cabinet?

A: Ministers were told that if the legislation passes, Ireland will become a world leader in terms of recognising surrogacies at home and abroad. The original legislation provided for domestic altruistic surrogacy, but did not contain measures to regulate surrogacy arrangements undertaken abroad. Now, the Government will move to insert a new section – running to nearly a hundred pages – on international surrogacy both retrospectively and prospectively. The new measures are being inserted into the Bill by way of committee stage amendments, and these amendments have added substantial detail and legal rigour to the Government’s plans, mapping out for the first time a system to provide recognised legal parentage for parents of children born through international surrogacy.

Q: So how will this system work?

A: There will be a two-step process, involving a preconception approval by the new Assisted Human Reproduction Authority (AHRRA), and a post-birth Circuit Court process for the granting of a parental order for surrogacy. In order for the authority to approve the international surrogacy application, a large number of strict criteria must be met.

Q: What are the criteria?

A: There are many. The country in which the surrogacy is proposed to take place must be included on a list of approved surrogacy jurisdictions established and maintained by the new authority. The arrangement cannot be commercial, but reasonable expenses can be paid to the surrogate mother. Details around what constitutes reasonable expenses will likely be set out at a later date. The embryo will have been created using the gametes of at least one intending parent but not an egg provided by the surrogate mother. The new authority must be satisfied that there is no potential significant risk of harm or neglect to any child. The intending parents must be at least 21 years of age and be unable to have a child without surrogacy. At least one intending parent must have been resident in the State for at least two years and have a reasonable expectation of living to parent a child until that child has reached 18.

Q: What are the criteria for the surrogate mother?

A: The surrogate mother must be at least 25 years old, have been resident in her country for at least two years, have previously given birth to a child, and have acted as a surrogate mother on no more than one previous occasion. Before providing fully informed consent, she must have received independent legal advice, independent counselling, and been assessed and approved as suitable to act as a surrogate mother from both a physical and psychological perspective.

Q: After this process, and the child is born, what happens?

A: After the baby is born, the intending parents will apply for an emergency travel certificate from the relevant Irish embassy or consulate to be able to bring the child back to Ireland. The time frame then for applying to the Circuit Court for a parental order for surrogacy will be between 28 days and six months following birth.

Q: There are many families in Ireland who have already gone through this process, and they may not have met all the criteria above, what about them?

A: The Government believes there are up to 500 such families. These parents will have to apply to the High Court for a parental order. The surrogacy arrangement must have been lawful and in keeping with any legal requirements of the country it took place in. The intending parents must have been the intending parents of the child at the time of conception. At least one intending parent must have been resident in the State for not less than one year before the relevant embryo transfer was completed. The surrogate mother must also have been in her country for at least a year. Importantly, the Government has approved these retrospective’ provisions being commenced as soon as possible and before the new authority becoming fully operational. This is to resolve practical challenges faced by parents of existing children born through surrogacy.

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