New laws to ban commercial surrogacy

The use of commercial surrogacy services is to be prohibited under proposed new laws.

The heads of the Children and Family Relationships Bill are likely to be published next month by Minister for Justice Alan Shatter.

The legislation will propose a long-anticipated legal basis for surrogacy and assisted human reproduction in the State.

While legislation will permit altruistic – or “non-commercial” – surrogacy arrangements such as those involving family members or donors, it will prohibit for-profit or commercial surrogacy arrangements.

These forms of surrogacy arrangements are increasingly being used by Irish couples in countries such as India, Ukraine and the US, and can cost between €30,000 and €150,000. Fertility clinics and legal sources estimate several hundred children in Ireland have been born by surrogacy services abroad. US agency Circle Surrogacy estimates it has arranged for the birth of 25 children through surrogacy for Irish parents in recent years.

Offence
Under the proposed new law, it will be an offence for a person to receive payment for making or facilitating a surrogacy or advertising surrogacy arrangements. Surrogacy costs may be reimbursed, however, if arrangements are made prior to conception and limited to "reasonable costs associated with a pregnancy", such as medical costs, travel, accommodation and loss of earnings.

In the area of assisted human reproduction – not involving surrogacy – the proposed laws seek to clarify issues of parentage involving the use of donor sperm or eggs. This is in response to the use of commercially sourced sperm or eggs by couples who would be unable to conceive on their own.

The proposals generally received a positive response from legal practitioners yesterday, although some expressed concern that rules to outlaw surrogacy could drive the practice “further underground”.

Tony O’Connor, a senior counsel who has advised on several cases in this area, said the rules would provide much-needed clarity in disputes regarding parentage involving donated gametes. “The detail will be all-important for minimising disputes in establishing the duties of parents in the rearing of children and making succession provisions,” he said.

Recognising relationships
Fergus Ryan, a law lecturer at DIT, said the proposals were a welcome attempt to recognise relationships outside the framework of biological parenthood.

“There has been a tendency by the legislature to ignore any issues which may have ideological undertones, so it is refreshing to see the Government dealing with these issues,” he said.

But Marion Campbell, a family law solicitor who has advised in high-profile cases regarding parentage, said proposals relating to surrogacy could result in parents availing of commercial surrogacy "under the radar".

“Personally, I think it would be better to face up to the reality of this. If we outlaw it, it may well just drive it underground.”

She said that at present parents who avail of surrogacy arrangements in the US are able to travel back to Ireland using US travel documents. As a result, Irish authorities are unaware of whether these children are born by surrogacy or not.

In countries such as India and Ukraine, parents returning to Ireland must have declarations of parentage.