International surrogacy will be regulated for the first time, while families will be able to apply for retrospective parental recognition, following Cabinet approval of new measures.
Surrogacy in Ireland – whether altruistic or commercial – is currently unregulated. Most surrogacies are undertaken abroad through commercial arrangements, often in Ukraine but also in Canada and the US.
Under the new plans, a two-step process will be introduced to allow for the recognition of parentage in future international surrogacy arrangements, which will involve pre-conception approval by a new Assisted Human Reproduction Regulatory Authority (AHRRA) and a post-birth court process to grant a parental order.
Families looking to undertake international surrogacy arrangements will be required to meet whatever legal requirements exist in both the jurisdiction where the surrogacy takes place and also separate criteria to be detailed in the legislation. These measures will correspond with the conditions for domestic surrogacies.
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Surrogate mothers will be paid reasonable receipted expenses. The expenses will include loss of earnings, specific foods and supplements. “It can cover things like not being able to work, all medical expenses, that any agencies involved would have a fee,” Minister for Health Stephen Donnelly said after Tuesday’s Cabinet meeting. He said there will be no cap on those costs.
There will also be measures put in place for the retrospective recognition of parentage for both domestic and international surrogacies but under specific circumstances. This includes stipulations that the surrogacy was not unlawful in whatever jurisdiction it took place in, that it was a purely gestational surrogacy – that is, the egg was not provided by the surrogate mother – and that the surrogate mother gave her consent to the granting of a parental order.
The legislation will effectively sever the pre-existing legal relationship between the surrogate mother and the child she gave birth to.
The Government decision follows the establishment by Mr Donnelly, Minister for Children Roderic O’Gorman and Minister for Justice Helen McEntee of an interdepartmental group to develop legislative amendments following the Oireachtas Joint Committee on International Surrogacy, which reported in the summer.
That committee recommended that international surrogacy be recognised in Ireland for the first time under a system of parental orders and guidelines.
The Oireachtas is considering an Assisted Human Reproduction (AHR) Bill where it is planned that the area of domestic surrogacy will be legislated for. The new proposals on international surrogacy will be inserted into that legislation at committee stage in the new year.
Mr Donnelly said that the Government has accepted 30 of the 32 recommendations contained in the joint committee’s report. “The remaining few have had minor technical changes made to them,” he said.
“It has my great honour to be able to bring this forward. For so many parents and their children, Ireland has been, while a welcoming country, a country where they had to live with uncertainty.”
Responding to criticism on Tuesday from High Court judge Mr Justice John Jordan, who said he is not convinced legislators appreciate the “true need for expedition” when dealing with the introduction of a law to regularise and recognise international surrogacy, Mr Donnelly said it was “an unusual comment on a day when Government has just brought through a memo, quite a historic memo, that deals with all of these issues”.
“I can tell you that this Government is taking this very, very seriously. This is complex, constitutional legislation.”
Mr Donnelly said he was confident all ethical concerns have been addressed. “We have now gone through a very extensive process between the three departments and the attorney general’s office to make sure that all the protections that are needed are in place. We need protections first and foremost for the child, the surrogate and the intended parents. I am confident that what has been agreed speaks to the appropriate level of protections for all of that.”
Mr O’Gorman said the new measures will provide “certainly to many families in Ireland whose children were born through surrogacy”.
There is currently no route to legal parentage for an intending mother, even if she provided the egg to the surrogate. This is because in Irish law motherhood is based on birth rather than genetics. While there is a route to guardianship for parents, this ends at 18.
