Ireland publishes draft surrogacy legislation

The Irish Government has agreed to put forward proposals for a wide-ranging bill that features provisions on surrogacy and parenthood for consultation.

The draft Children and Family Relationships Bill, published by the Minister for Justice, Equality and Defence, Alan Shatter, contains proposals that address parentage issues in assisted reproduction and surrogacy, as well as guardianship, custody and access in a range of family types.

'We urgently need to reform and modernise our family and children's law to cater for the growing number of families whose needs are not adequately addressed in current law', said Mr Shatter in a statement.

'Legislation in this area cannot be a one-size-fits-all solution but must, in a creative and pragmatic way, reflect the needs of families and children in 21st century Ireland with the focus firmly fixed on the best interests of the child', he added. The key principles behind the bill are the welfare and best interests of the child, as well as promoting the stability of families with children.

Currently, there is no Irish legislation that covers surrogacy. The surrogate mother is usually considered the legal mother and intending parents are required to adopt the child in order to be conferred legal parenthood or apply for guardianship. Last year, the High Court in Ireland ruled that the genetic (and intended) mother of a surrogate-born child rather than the gestational mother should be registered as the child's legal mother (reported in BioNews 696}. The decision is being appealed to the Supreme Court (reported in BioNews 708), however.

The Irish Commission on Assisted Human Reproduction recommended in 2005 that a child born through surrogacy should be presumed to be the intended parents' legal child (reported in BioNews 306) and in 2010, the Law Reform Commission identified a need to reform the laws by extending parental responsibility to civil partners. In 2011, an advisor to the Irish Government expressed his concern that a failure to legislate in the area of surrogacy may result in children's rights being violated (reported in BioNews 634).

Mr Shatter said the draft bill seeks to provide legal clarity on the parentage of children born through IVF and surrogacy. It will allow married couples, civil partners and cohabitants in a 'committed relationship' to acquire legal parenthood over children born through assisted reproduction and surrogacy.

It will also provide for court oversight in the granting of parenting orders in surrogacy 'to ensure that future surrogacy arrangements are consensual, altruistic and non-commercial', Mr Shatter said.

The best interests of the child will be the paramount consideration in decisions about parentage, guardianship, custody and access. 'The draft bill's objective is to safeguard the child’s best interests while offering a route to parenthood for the commissioning parents', Mr Shatter said. The draft bill also offers a definition of a child's 'best interests'.

The bill also prohibits commercial surrogacy.

The Government has referred the bill to the Oireachtas Committee on Justice, Equality and Defence to initiate a consultative process, before the finalised legislation is drawn up. Mr Shatter said: 'These are complex and sensitive issues. It is important that the general public and relevant interest groups should be consulted before we finalise the Bill'. The Committee has been asked to respond by Easter.